Penfold and Penfold
[2013] FCCA 2387
•19 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENFOLD & PENFOLD | [2013] FCCA 2387 |
| Catchwords: FAMILY LAW – Interim property proceedings – application for spousal maintenance and sole occupancy – matters to be considered. |
| Legislation: Family Law Act 1975, ss.72, 74; 75, 114 |
| O’Dea & O’Dea (1980) FLC 90-896 Scholte & Scholte (2002) FamCA 59 Davis v Davis (1976) FLC 90-062 Bassett v Bassett (1975) 1 AER 513 Price (unreported) Family Court (Lindenmeyer J) delivered 12 July 1982 Sieling v Sieling (1979) FLC 90-627 MG & JGG [2004] FMCAfam 300 Bevan & Bevan (1995) FLC 92-600 Redman v Redman (1987) FLC 91-805 |
| Applicant: | MS PENFOLD |
| Respondent: | MR PENFOLD |
| File Number: | ADC 4432 of 2013 |
| Judgment of: | Judge Brown |
| Hearing date: | 19 December 2013 |
| Date of Last Submission: | 19 December 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 19 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carlin |
| Solicitors for the Applicant: | Carlin Lawyers |
| Counsel for the Respondent: | Ms Lee |
| Solicitors for the Respondent: | Hyde White Legal Services |
ORDERS
The wife vacate the premises located at Property M no later than 4.00 pm on 28 December 2013.
Upon the wife providing written proof to the husband that she has entered into a lease of alternate residential premises for herself, the husband pay the wife the sum of three thousand dollars ($3,000.00) by way of urgent spousal maintenance.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999, the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 28 March 2014 at 11.00am.
Unless otherwise exempted from payment, the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
Should the Applicant fail to comply with Order 4 herein, the conciliation conference is to be vacated and the matter is to be listed for mention before the Court.
Further consideration of this matter be adjourned to 15 April 2014 at 9.30 am.
IT IS NOTED that publication of this judgment under the pseudonym Penfold & Penfold is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4432 of 2013
| MS PENFOLD |
Applicant
And
| MR PENFOLD |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were orally delivered immediately following the interim hearing concerned. They have been corrected from the transcript in the sense that punctuation has been inserted, paragraphs inserted as intended; errors in expression corrected; footnotes, headings and case references inserted and corrections made necessary to make the orally delivered reasons amenable to being read.
These reasons for judgment concern an interim application for sole occupancy of a property located at Property M and a related application for spousal maintenance.
The parties to the proceedings are Ms Penfold “the wife” and Mr Penfold “the husband”. The wife commenced these proceedings on 26 November 2013 and at her request they were given an urgent return date of 9 December 2013.
Background
By way of agreed background, the wife was born in (country omitted) on (omitted) 1967. The husband was born in Australia on (omitted) 1960.
The parties met on an internet dating site in 2009. At the time, the wife was living in (country omitted) and the husband was living in Australia.
The wife had moved to (country omitted) in 2000 after meeting a (country omitted) citizen whom she married in 2004. She became a (country omitted) citizen some years thereafter.
The wife has three children. They are X, born (omitted) 1990; Y, born (omitted) 1994 and Z born (omitted) 2004.
The youngest child lives in (country omitted) with his father. The eldest child who is a child no longer, lives in (country omitted). The middle child aged 17, has recently finished school and as I understand matters, is living in Property M, although he has plans to seek work in (omitted) shortly.
The wife has skills as a (omitted). She had a (business omitted) in (country omitted). The husband has been a (occupation omitted) with 28 years’ service. He retired from the (employer omitted) on 5 June 2012, as a (occupation omitted). He is now in the (employer omitted).
The wife came to Australia in March 2010 to pursue her relationship with the husband and with the husband’s encouragement. They spent some time together in (omitted) where the husband was then stationed and also had a holiday together in (country omitted). The parties married in South Australia on (omitted) 2012.
The husband purchased the property at Property M in October 2009. He values it at around $259,000. It is subject to a mortgage of $216,000. It is registered in the husband’s sole name.
As a consequence of his long (occupation omitted), the husband has superannuation interests in the (omitted) superannuation fund.
He currently receives a pension from his (omitted) superannuation entitlements which are in their payment phase. He is also entitled to a disability payment as a result of a psychological injury he received whilst (occupation omitted). He receives a sum in total of $438.83 per week.
On his retirement from the (employer omitted), the husband also elected to take a lump sum payment of superannuation in the sum of $100,000. It is his evidence which I accept that he has spent this sum of money.
The nature of the applications
The wife filed her application on 26 November 2013. By way of final orders for the settlement of matrimonial property she seeks the payment to her of a sum of money which the court considers just and equitable in all the relevant circumstances.
She also seeks that there be some form of splitting order in respect of the husband’s (omitted) superannuation entitlements. She also seeks on a final basis the payment of a sum of spousal maintenance at a rate to be determined by the court.
Accordingly, at this early stage the wife’s claim for property settlement and related ongoing spousal maintenance is not delineated with any particular degree of care.
I am not critical of her in this regard because clearly the application was filed in circumstances of some urgency. It is also I think apparent that the relationship between the parties cannot be regarded as having been a lengthy one. It is a relationship slightly in excess of three years.
On an interim basis, the wife seeks a number of orders. Firstly, she wished her application to be heard urgently. Secondly, she wished an order that the husband vacate the Property M property and she have its sole occupation.
Thirdly, she seeks an urgent award of spousal maintenance in her favour in the sum of $150 per week. This sum is sought both as a matter of urgency pursuant to the provisions of section 77 and also generally in respect of the other maintenance provisions of the Family Law Act.
In addition and finally, the wife seeks that the husband should pay all the ongoing payments, including the mortgage on the Property M property, whilst she continues to occupy it and the husband is excluded.
The husband responded to the application as quickly as he could. He did so on 6 December 2013. On both a final and interim basis, he seeks that the wife’s application for spousal maintenance be dismissed.
In addition, on both an interim and a final basis, he seeks orders that the wife vacate the Property M property. It is common ground that the wife has filed a caveat on the property and the husband, as a corollary of his occupation of the former family home, seeks its removal.
Finally, it is also common ground between the parties that they own a Holden (model omitted) motor vehicle. The vehicle is registered in the husband’s sole name, although I understand it is in the wife’s possession. Mr Penfold wishes that vehicle to be sold and its proceeds of sale be directed towards the discharge of a loan to the (omitted) Bank.
Accordingly, as is the case with the wife, the husband has not delineated his response to the claim for matrimonial property settlement with any great precision. Again, I am not critical of him for this.
In any event, it is his position as I understand it, that the parties do not have a large pool of assets. It is the husband’s case that he acquired his superannuation entitlements largely prior to the party’s marriage. His interest in the (omitted) superannuation fund has not been valued – due to the intricate nature of defined benefits superannuation schemes – the process of valuation is likely to be a somewhat complicated exercise.
It is the husband’s case that the parties’ assets consist chiefly of the interest in the Property M property; some motor vehicles; the Holden (model omitted) which is subject to a significant loan of $50,000.00 and which he believes is worth $57,000.00; some items of furniture; a boat which the husband had prior to the parties’ marriage and a camper trailer.
In his statement of financial circumstances, the husband puts the pool of assets as being significantly less than $100,000.00 – perhaps somewhere in the vicinity of around $50,000.00.
The respective positions of the parties
Each party has filed a number of affidavits in regards to their respective positions at this stage. The wife’s position can be summarised as follows. It is her case that she suffers from a number of significant health issues, including digestive problems and sleep apnoea. In particular, she suffers from a condition known as abdominoplasity.
It is the wife’s position that she is unable to work due to her medical issues. Significantly, it is also her case that as a person who has recently arrived in this country, although via another country where English is the lingua franca, she does not speak English well and is likely to find it difficult to find employment for herself because of this even if she was fully medically fit.
In her affidavit filed on 26 November, she asserted that she was unable to obtain Centrelink benefits because, although married to an Australian citizen and separated from that citizen, she was in this country on a temporary partner visa which disqualified her from obtaining social security.
It was further the wife’s position that the husband had made her life in the Property M property unbearable. She asserted that the husband had threatened her and her son, telling them that they had to vacate the property at Property M as soon as possible.
In her evidence she indicated that she had nowhere to go, had no money and no family support. She said she felt unsafe in the former family home because of the husband’s behaviour towards her. It was further her evidence that she had no access to credit and as a consequence she was unable to pay rent on another property or even put food on the table.
Accordingly from the wife’s perspective, she was in a powerless position. It was also her case that she was the victim of quite significant family violence which emanated from the husband. In support of her position she provided some notes which she had obtained from the Southern Women’s Community Health Centre where she had been consulting a counsellor.
In his answering material the husband characterised the wife as a dishonest and avaricious person. He asserted in effect that during the party’s marriage he had paid significant sums of money which had benefited the wife for such things as plastic surgery, the payment of her medical expenses and the purchase of items of jewellery.
The effect of the husband’s evidence was that the wife had in effect squeezed him for every penny that he had, leaving him with virtually nothing. It was the husband’s evidence that contrary to what the wife said, it was she who had been violent towards him.
He deposed that she had bitten him on the arm; punched him in the face and threatened him with a knife. In terms of the incident with the knife, he asserted that he had had to disarm the wife and if he had not done so, he feared that she would have wounded him significantly.
It seems to be the case that the police have been called to the parties’ premises from time to time due to disturbances there. It is the wife’s case that because the husband is a (occupation omitted) person, he is able to mollify the police and persuade them to go on their way and not take proper action to protect her.
The husband refutes this. From his perspective, he asserts that although he has been the victim of family violence, he has not wished to press charges against his wife as a consequence of a combination of personal embarrassment and because he did not want her to get into trouble. As a result of his actions, the police have not become more significantly involved.
It was also the husband’s position that when the matter first came into court, he too was in a significantly strained financial position and was struggling to make ends meet. As I say, he deposed that his income was in the sum of around $438.00 per week.
He asserted that his regular weekly expenditure came to the sum of around $700.00 per week; the most significant amount in this regard related to the purchase of food and the running of his motor vehicle.
Accordingly, it was the husband’s position, as with the wife, that he really had nowhere else to go. As I say both party’s affidavits and applications seem to have been hastily prepared in a situation of some crisis. The husband conceded that due to his (occupation omitted) connections he had been at least for some time staying at the (employer omitted) in Adelaide.
The evidence provided at the hearing
It is a very significant thing to evict a person from the home he or she owns and is legally entitled to occupy. Mr Penfold owns the Property M property. As a consequence of his ownership he is entitled to occupy the property.
When the matter came on for court on 9 December, it came into court on what is commonly called the duty day. That is the day on which matters come into court on the first time. It is usually a very busy day where all sorts of matters have to be dealt with and assigned to an appropriate process leading to their resolution.
It was my impression on 9 December that from the perspective of each party, their cases were in a state of transition in the sense that from each side evidence remained to be collated and considered.
From the bar table on 9 December, the husband’s solicitor asserted that the wife had recently been engaged in paid work. In addition, he refuted the wife’s suggestion that she was not entitled to Centrelink benefits.
It was also the assertion of the husband’s solicitor that the wife had found a property which she wished to lease and had borrowed some money from a friend to pay the necessary security deposit. Accordingly she was not in actuality homeless.
From my perspective, these were each potentially very significant issues and I wanted to know what was the truth or otherwise of them. In those circumstances, I elected to fix the matter for a limited hearing involving some cross examination of each of the parties as quickly as I could accommodate it.
The date allocated was later that week, on Friday 13 December. Each party was directed to file further affidavit material and each in accordance with that direction has filed an additional affidavit – the husband on 11 December 2013 and the wife on 13 December 2013.
As a consequence of the hearing, I was able to see each of the parties in the witness box and make some sort of assessment of their respective credibility. Otherwise, the affidavit material available to me from each of the parties was completely at odds.
The wife gave her evidence through a (language omitted) speaking interpreter. I accept that her English skills are very limited. She was highly emotional in the presentation of her evidence, frequently breaking down into tears.
The husband is more laconic by disposition. He presented as a self-reliant (occupation omitted) who keeps his feelings contained. However, I accept that he is also very affected by the party’s current situation and is at his wits end emotionally.
Although I have not any extensive evidence in respect of his health, I also accept that he is psychologically vulnerable. He told me that he had been with the (employer omitted) in (country omitted) and had suffered a post-traumatic stress disorder as a result of his (duties omitted) there. It is also the case that he has been assessed as entitled to receive some disability payment because of that psychological injury.
The situation between the parties is highly volatile. I expect each has many unresolved emotional issues with the other. In those circumstances, it is only to be expected that each of them would find living in the same household very stressful and emotionally debilitating.
The parties it seems shared the Property M property last weekend. They have different views as to what happened. The husband asserts that there was at least some discussion about reconciliation. However at this stage after assessing all the evidence and in particular, having asked each of the parties about it, I accept that the relationship between them has come to an end.
I also accept that it is close to impossible for them to be living in close proximity to one another. The emotional situation is too difficult and too volatile for that. As I have indicated, it is my impression that both party’s initial affidavit material was hastily prepared. In both instances their cases have grown in the telling.
It now appears to be clearly the case that the husband understated his income in his initial financial statement. He is entitled to work as an (occupation omitted) with the (employer omitted) for 100 days per annum. The income he receives is tax free. As a consequence of this, he has the potential to earn at a minimum, around $2000.00 per fortnight.
If he is providing (occupation omitted) and getting allowances for being away from home, he can earn significantly more. It would seem to be the case that he has the capacity to earn around $14,000.00 tax free per year. His evidence was that he utilised this sum to pay the mortgage on the Property M property.
It was also his evidence that the (employer omitted) would be closing for the Christmas break on 16 December 2013. In those circumstances, it was his position that he would have nowhere to stay after 16 December. He said that he would be sleeping in his car. I take that statement with a grain of salt.
Mr Penfold is not from Adelaide. It is his evidence that he has no family with whom he is close in Adelaide and very few close friends in the area. It is also his case that people in the (employer omitted) will be going to various (duties omitted) and it is impossible for him to stay in the (omitted) after 16 December. Whether that must mean that he will be sleeping in his car, I am not sure.
The parties’ relationship has had many significant stressors in it. One very significant stress factor is that the husband was charged with some serious species of assault in respect of his young daughter who was living with the parties for a period of time.
The wife was summonsed to be a witness for the prosecution against her husband. Whether the wife sought to be excused under the relevant evidentiary provisions of the South Australian legislation from giving evidence against her husband is unclear to me. In any event, the husband was acquitted of the charges against him.
However, as he had some money in the bank he was not entitled to Legal Aid. It is his evidence that he spent around $50,000.00 on his defence and this expenditure exhausted his savings.
In addition, as I have already indicated it is the husband’s evidence that he has spent significant sums on the wife’s account since the parties first met. It is also his view that the wife considers him to be a much wealthier person than he actually is.
In terms of each party’s respective levels of credibility, I bear in mind that the wife is not a native English speaker and that it was difficult for her to give evidence in these proceedings because of cultural difference. But notwithstanding these factors, it is my finding that the husband is on balance the more reliable witness.
The wife was at times evasive about aspects of her situation which are significant. In particular, it is now clearly the case that the wife is entitled to Centrelink benefits and she knew that she was entitled to Centrelink for a significant period of time certainly prior to the instigation of her proceedings.
She also concedes that she has recently worked. The wife was employed as a (omitted) at a (employer omitted) in (omitted). It is her evidence that she stopped work fulltime on 20 September. It is her case that she stopped working because she had her abdominal operation around about that time.
What is the nature of that operation, I am not completely certain. The husband has referred to it as a tummy tuck, but from the wife’s perspective it was a more serious operation, certainly not cosmetic in nature.
In any event, the wife conceded that on Saturday, 14 December, she had worked at the (employer omitted). The (business omitted) owner had telephoned her and asked if she could work. She worked for four and a half hours and received $60.00 to $70.00 cash in hand.
The wife gave her evidence with her arm in a sling. But I think it must be the case that she was able to work as a (omitted) at least on that Saturday notwithstanding her injury.
It is the wife’s position that her arm has been damaged because the husband twisted her arm and damaged ligaments. It is the husband’s case that the wife did injure her arm but did so many years ago in (country omitted) when her arm was caught by a slamming door in the wind.
The husband was resolute in his denial of ever having been violent to the wife. It is the case that the wife has sought shelter in the (omitted) women’s shelter, but there is no medical evidence provided to me to indicate or support her claim of having been assaulted.
The husband as I say, asserts that it is the wife who has been violent towards him. In particular, he asserts that she punched him in the face and he has provided a photograph of himself which indicates some wound of a fairly superficial nature to his face.
It was his evidence which I accept, that he had not reported the wife to police because that would be a low act on his part to report a woman to the authorities. On balance, I accept that the husband is likely to be the more reliable witness in terms of what was the nature of the parties’ relationship. Although as I say, I accept that the situation from both party’s perspectives was difficult and volatile.
I also accept that the wife has at the current time no savings to speak of and nor does the husband. In all the circumstances of the case, it is unpalatable for the court to be placed in a position where it must decide which one of two indigent parties is to be removed from the former family home. But it seems to me that there really is no alternative – one of the parties will have to leave.
After the hearing last Friday I suggested to Mr Carlin, who is the wife’s solicitor, that it may be prudent if his client made some inquiries with the estate agent with whom she had been dealing previously, (omitted), as to whether there was some accommodation available which would be suitable for her.
I am told today that she has found some accommodation which will be available from 28 December onwards. It is now a little less than a week until Christmas. I accept that it is not a good time to be looking for rental accommodation. But be that as it may, I am pleased that the wife has found some accommodation for herself, although I accept that there will be issues regarding the payment of a bond.
The husband’s evidence is that he has borrowed $3000.00, which he is intending to utilise either for himself to provide a security deposit or to provide to the wife for her security deposit. It is his case that he has been living in the (omitted) as I say, with only a small television set from the former family home.
The applicable legal principles to be applied
I will now turn to the legal principles which I must apply. The basis of the wife’s occupation for sole occupancy of the former family home lies in section 114 (1) of the Family Law Act. The relevant portion of the section reads as follows:
“114(1)…the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including –
…
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;”
The court has authority to make such orders in proceedings which relate to a matrimonial cause. Proceedings relating to the division of matrimonial property and spousal maintenance are such matrimonial causes.
Accordingly, in the present case the court has authority to grant an injunction restraining the husband from entering the Property M property, notwithstanding he is the property’s sole proprietor at law.
The Full Court of the Family Court has described the criteria to be applied to a sole occupancy application as “surprisingly vague”.[1] The seminal case regarding the use of section 114, in sole occupation applications, is Davis.
[1] See Scholte & Scholte (2002) FamCA 59 at paragraph 32
In that case, it was said that the matters to which the court should have regard, in its deliberations, as to whether it was “proper” to make a sole occupation included the following:
· The means and needs of the parties;
· The needs of any children concerned;
· Hardship to either party, including any relevant children;
· If relevant, conduct which justifies one party being expelled from the former matrimonial home. [2]
[2] See Davis v Davis (1976) FLC 90-062 at 75,309
More recent cases have focussed on issues related to strict practicality, within what has been coined, the “the realities of family life”. The question which it has been said the court should pose for itself being: “is [it] really sensible to expect a wife … to endure the pressures which the continued presence of the other spouse will place upon them.”[3]
[3] See Bassett v Bassett (1975) 1 AER 513 at 520 approved in Page v Page (1981) FLC 91-025
Inconvenience to the parties concerned is not sufficient to justify a sole occupancy order. The court has been directed to be alive to the risk that a spouse may use a sole occupancy injunction as a tactical weapon in the ongoing matrimonial conflict.
Accordingly, caution is required in assessing whether such an order should be made, particularly as, at the interim stage, it is likely to be difficult for the court to predict who of the parties ultimately is likely to retain control of the property concerned, as issues to do with contribution have not as yet been determined.
In Price Lindenmeyer J indicated there had been a “softening of the court’s attitude” towards exclusive occupation orders. There was now no onus on an applicant for such an order to demonstrate irrational, intolerable or awful behaviour on the part of the party whom it was sought to exclude.
Rather: “the court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.”[4]
[4] See Price (unreported) 12 July 1982 approved in Scholte (supra) at paragraph 35
As the power to grant an injunction is a discretionary one, it must not be exercised lightly, particularly if any interference with a spouses proprietorial interests is envisaged. As such, the court should not proceed on “vague or uncertain claim[s]”.[5]
[5] See Sieling v Sieling (1979) FLC 90-627 at 78,264
In my view, these authorities demonstrate that the court must move cautiously in determining whether to exclude a spouse from a jointly held property, pending resolution of competing claims in respect of that property.
The court must examine the entire circumstances of the parties concerned and determine whether, on the facts of a particular case, such an order is justified. Essentially, the court must determine whether any order is proper and ensure that individualised justice is delivered.
In terms of spousal maintenance, pursuant to section 74 of the Family Law Act, the court may make such order as it considers proper for the provision of maintenance to the wife in accordance with the provisions of Part VIII of the Act.
In particular, section 72 deals with the right of a spouse to maintenance and reads as follows:
“S.72 (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).”
In the circumstances of this case, the relevant section 75(2) factors are likely to include the following the age and state of health of each of the parties; the income, property and financial resources of each of the parties; the physical and mental capacity of each of them for appropriate gainful employment; and what is a reasonable standard of living for the parties in all the circumstances.
The Full Court of the Family Court in Bevan & Bevan[6] determined that the approach to be taken in respect of applications for spousal maintenance involved a four step process as follows:
a)a threshold finding under s.72;
b)consideration of s.74 and s.75(2);
c)no fettering principle that a pre-separation standard of living must automatically be awarded where the respondent’s means permit;
d)discretion exercised in accordance with the provisions of s.74 with “reasonableness in the circumstances” as the guiding principle.
[6] Bevan & Bevan (1995) FLC 92-600 at 81,981-2
In Redman v Redman[7] the Full Court of the Family Court considered the procedural and evidentiary requirements, which attach to interim spousal maintenance proceedings. It regarded such applications as not requiring as extensive evidence because they arose in circumstances of urgency and accordingly had to be dealt with expediently.
[7] Redman v Redman (1987) FLC 91-805 at 76,081
Conclusions
In this case, I think it is clear that it would be neither reasonable nor sensible for the parties to continue to remain living together in the Property M property. It is clearly the case that one of them will have to leave. I have to, in effect, balance the hardship arising between the parties in deciding who of them should be the one to leave.
That is not an easy task as I accept that both of them are in extremely straightened circumstances and it will represent a significant hardship to the party who has to leave.
However, in my view, the fact that the husband is the registered proprietor of the Property M property and it is he who has made the overwhelming financial contribution towards its acquisition is a factor, which militates significantly in his favour.
The reality of the situation is that at final hearing he is likely to retain the property, particularly bearing in mind that the relationship between the parties was one of a short duration.
As I say, the wife characterises her application as being an urgent one. In this case, significant disputes arise regarding the wife’s capacity to gain employment for herself. I accept that she is not currently physically robust, but she does have skills as a (omitted).
In her evidence, the wife told me that she regarded herself as a good (omitted) and she enjoys that kind work. She certainly seems to be well regarded by her former employer in (omitted), who offered her work recently.
As a result, she was able to earn not a huge sum, I acknowledge, but she did receive an income for four and a half hours work of $60.00 to $70.00, so it seems to me that the wife does have some physical capacity to work.
This is not a case where there are any children of the marriage under the age of 18 years. The wife’s middle child, who has been living with the parties, is not a child of the marriage and it also seems to be the case that he will be seeking employment for himself elsewhere interstate.
The husband is required to maintain the wife only if she is unable to support herself and only if it is reasonable for him to provide support and he is able to do so.
Putting aside the husband’s income from the (employer omitted), with which he is not likely to be engaged over the period of late December and early January, I accept that the husband has no significant surplus forms of income which he can allocate to providing on-going financial support for the wife.
However, he still has some obligation, I think, to provide some assistance to the wife, particularly as she, in her difficult circumstances, has acknowledged that she will be leaving the Property M property.
I therefore accept that by way of her urgent spousal maintenance it is reasonable that the husband provide to the wife the sum of $3,000.00 to help in her re-accommodation expenses. In the other circumstances of this case, I do not propose to make any other order for spousal maintenance given my finding that the wife has some capacity to provide financial support for herself.
The next step in the process is for the parties to attend a financial mediation conference and I will appoint a date for that and make the necessary procedural orders required.
In all the circumstances of the case, I have come to the conclusion that it is proper that the wife vacate the Property M premises and that she do that no later than 28 December and that the husband pay her the sum of $3,000.00 by way of urgent spousal maintenance, provided that the wife gives him written proof that she has indeed entered into a lease of alternate premises for herself.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 19 December 2013
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