PEVERELL & PEVERELL
[2018] FamCA 827
•15 October 2018
FAMILY COURT OF AUSTRALIA
| PEVERELL & PEVERELL | [2018] FamCA 827 |
| FAMILY LAW – EXCLUSIVE OCCUPANCY – where the wife seeks the return to the former matrimonial home from which she departed as a result of mental illness problems – where subsequent to her release from hospital, the husband arranged the lease of a property nearby which lease continues until February 2019 – where the wife submits that it is part of her medical treatment to be able to return to where she fulfilled her role over the years of the marriage as a home maker and parent – where the Court finds that the evidence does not support such a conclusion on an interim basis – wife's application to sole occupancy is dismissed. FAMILY LAW – PARTIAL PROPERTY SETTLEMENT – where there is no dispute that there are significant assets and the wife will receive $120,000 – where the husband seeks that the source of the payment be identified to avoid conflict – where the Court takes the view that the parties need to sort that out and otherwise it becomes an enforcement issue – order for $120,000 to be paid within 60 days. FAMILY LAW – SPOUSAL MAINTENANCE – where the wife seeks periodic spousal maintenance on the basis that she cannot adequately support herself on her superannuation pension but where it is conceded that there are still significant sums of money in her superannuation member account that could be either used as capital or converted to income – where the Court exercises its discretion to reject some of the claimed expenses on the basis that they are unlikely to be used on a weekly basis – where the wife has a shortfall on her superannuation pension but could easily access cash – where the wife's argument that she is not obliged to use up all of her assets and capital is rejected – where the application for spousal maintenance is dismissed. |
| Family Law Act 1975 (Cth) |
| Bing & Bing (2007) FLC 93-318 Chorn v Hopkins (2004) FLC 93-204 Davis (1983) FLC 91-319 |
| APPLICANT: | Ms Peverell |
| RESPONDENT: | Mr Peverell |
| FILE NUMBER: | MLC | 7358 | of | 2018 |
| DATE DELIVERED: | 15 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 9 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Puckey |
| SOLICITOR FOR THE APPLICANT: | Barry Nilsson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Smallwood |
| SOLICITOR FOR THE RESPONDENT: | Schetzer Constantinou |
Orders
The application of the wife for exclusive occupancy of the former matrimonial home is dismissed.
By way of partial property settlement, the husband pay to the wife $120,000 within 60 days.
The wife's application for spousal maintenance on a periodic basis is dismissed.
All interim applications are otherwise dismissed.
All outstanding applications for final hearing are adjourned to a date to be fixed for listing before a trial judge as soon as practicable and that they be placed in the list as of 9 October 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peverell & Peverell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7358 of 2018
| Ms Peverell |
Applicant
And
| Mr Peverell |
Respondent
REASONS FOR JUDGMENT
In this interim hearing, there are three issues for determination relating to:
a)the exclusive occupancy of the parties former matrimonial home;
b)litigation funding;
c)spousal maintenance.
The proceedings are between Ms Peverell (the wife) and Mr Peverell (the husband) arising out of their long marriage. It is the wife who seeks the orders and the husband resists all but (b) above.
Although the proceedings began as a contest on (b), counsel for the husband said the husband was “content to facilitate” $120,000 being drawn from his superannuation “or from the wife's entitlement to the fund”.
In my view, the Court does not need to descend to the details of where the money comes from (albeit counsel for the husband submitted that it would be more efficacious to be specific to avoid disputes) as, regardless of how much money there is to divide here (and it is expected to be in the millions of dollars), the wife will receive at least the amount she seeks now. She desires to pay her lawyers to enable their continued involvement.
There being no dispute about what power is being exercised, the order should be made.
It is not appropriate to leave to the trial judge the responsibility of sorting out the “characterisation” or a “categorisation” of this order because there is no doubt that the money will be gone by the time of the trial and in any event, the principles in Chorn v Hopkins [2004] FLC 93-204 will most likely apply.
I intend to apply the s 79 power under the Family Law Act 1975 (Cth) (“the Act”).
As to the question of the extent of the order, in Bing & Bing [2007] FLC 93-318, the Full Court said:
[27]Finally it has been asserted that the husband was and remains unable to raise the capital sum sought by the wife. This is a matter which may become relevant if and when the husband defaults in the order and an enforcement application is brought. However, the question of enforcement of the order remains a separate question from the propriety of granting the order in the first place.
In Kyriakos & Kyriakos [2013] FamCAFC 22 at [35] a different Full Court said that the basis of the making of the order was no longer persuasive (as set out in Bing) because there was no consideration given by that Full Court to the requirement to make a litigation funding order and in any event, it preceded what is now the authoritative approach in Strahan & Strahan (2011) FLC 93-466.
However, nothing was said by the Full Court in Kyriakos about the question of where the money came from and whether that issue was a matter for enforcement. I considered with the resources of the parties here, they should work out the source of the payment and an adjustment can later be made if necessary at trial. Because the husband has the greater control of the financial resources, I shall make an order that the husband pay the $120,000 within 60 days.
Turning then to the exclusive occupancy order, the facts are modestly controversial. This was a long marriage where there are four adult children.
The wife left the home on 23 November 2017 in an acute stage of mental ill-health. In December 2017 a psychiatric facility determined that she was not capable of making rational decisions.
She was released however and in January 2018 the husband took her back to the home and he stayed elsewhere during which time, the wife changed the locks on the home. A few days later, in February 2018, with the wife again unwell, she was admitted involuntarily to another psychiatric unit. The wife's version is that this was somehow orchestrated by family members but the involuntary nature of the admission would tend to suggest that there was a serious problem.
The wife was released from hospital in February 2018 but before that, the family leased a property in Suburb B which is three kilometres away from the family home. During her period in hospital, her belongings were taken to that property and she has not returned to the family home since that time.
It is the wife's case that her health is linked to her role fulfilled during the marriage. She argues that her psychiatrist says that her absence from that role exacerbates her mental health and therefore she needs to return to the home as an essential part of her recovery. She also points to the renovations that were done to make the home more appealing to her and to assist her anxiety. It is the wife's case that she is desperate to return the home.
Here, the wife relies upon two psychiatrists. Dr C provided an affidavit filed on 29 June 2018. He said that the wife attended upon him approximately once per month between June 2008 and January 2018. He said that he first diagnosed bipolar disorder and depression noting that she had previously been diagnosed with postnatal depression. She had been treated with a variety of drugs. In his initial treatment, he did not see the wife display any clear periods of mood elevation and the associated features of mania or hypomania and accordingly, he considered that she did not have bipolar disorder.
Over the years, the psychiatrist noted the wife's concerns and frustrations with her husband and her children. From 2017, that frustration increased and her behaviour altered progressively with greater irritability often aimed at her husband, the children and her daughter-in-law. He began to think that this was a paranoid state as result of some of the complaints that she was making. Bipolar disorder was again the most likely diagnosis.
The psychiatrist prescribed drugs but the wife was also admitted to hospital and engaged in psychotherapy activities. By January 2018, the psychiatrist was of the view that the wife's judgement and decision-making abilities were affected and she was not making rational decisions. He thought she appeared increasingly unwell with anxiety and depression and she expressed greater frustration and anger towards her husband.
That last diagnosis is not disputed but it adds little of relevance to the issue of the importance pressed by the wife of her need to return to the home.
The wife then relied upon the evidence of another psychiatrist Dr D. Dr D diagnosed the wife as being mildly depressed characterised by low mood, reduced motivation, loneliness, sleep disturbance and feelings of grief and guilt. She too prescribed the wife with medication.
Dr D said that the side effects from the medication and the “psychosocial management of her mental health” was an essential element to recovery. That led to recommendations of psychotherapy, behavioural therapy and regular exercise.
The psychiatrist then said that she considered that the prompt resolution of the divorce proceedings was paramount to the wife's recovery as they placed an enormous emotional and financial stress upon her. As the wife had seen her main roles in her adult life as a mother and home manager, those roles had been severely disrupted by her relocation from the home. The psychiatrist saw the return to the family home as essential to her mental well-being as living in that home was intrinsically tied to her sense of role and meaning in life.
The last conclusion however has doubtful relevance other than towards final orders as it is directed to the long-term treatment. It is unclear how much of the return to the home is significant by comparison to the psychotherapy, behavioural therapy and regular exercise. Even if the wife returned home, it is hard to see how this would be a return to her role as a mother and home manager. There is a clear problem within the family about which I know very little. Accordingly, it would be unwise to rely too heavily on the psychiatrist’s opinion without being properly tested in Court. In the circumstances, I have given little it little weight.
I have already set out the psychiatrist’s view that the wife suffers from mild depression. One of the adult children still resides in that home. It is said by the husband that that adult child suffers from a bipolar affective disorder. He went on to say that he thought it doubtful whether two people with significant mental health issues would be able to provide the necessary level of support to each other. He says he can provide for his adult son. Whilst that evidence is a conclusion or opinion unsupported by any fact, it remains a matter of concern in relation to the exercise of discretion. If what the psychiatrist said is accepted, the disruption in the household by the wife's return may give rise to other interventions such as an intervention order. That would be catastrophic for this family.
When I asked about whether the parties could live together in the home, each agreed that it was not tenable. As such, it must be seen as a further disruption to both parties’ lives for what may, or may not, be a short time until the final hearing.
All of that leads to the question of the quest for the home property. Counsel for the wife submitted that only the wife would be able to keep the home because the husband wanted to retain the other valuable asset which is his professional practice. By contrast, counsel for the husband submitted that the wife could not afford to keep the home on the basis of the known values of the properties. Thus, if that outcome, as suggested by the husband occurred, the wife would have to leave again.
The husband's case is that he wants to keep the home but as the wife has not pleaded with any particularity, I am unsure whether she is still intending to pursue that order.
The wife's evidence was contained in two affidavits. In respect of the exclusive occupancy order, she said that she had suffered depression and bipolar disorder for many years and she had been seeing a variety of health professionals. After leaving the home, in her view, her mental health began to decline and she impulsively moved between houses, hotels and rental properties. She said she felt unable to settle as nowhere felt like home.
The wife then said that she had relied upon the husband being truthful in relation to money and as there was a shortage of it from the husband's perspective, she looked for rental properties of a significantly lower standard than the home. She rented the property in Suburb B. That property has three bedrooms, two of which were very small and a living space “so small” that there was insufficient space for a dining table or a couch unless the table was in the kitchen.
The wife confirmed that around the middle of January, she had decided to live in Suburb B and she thought she could afford the monthly payments.
The wife also agreed with what I have earlier set out about her moving back but then again being hospitalised.
When the wife was about to be discharged from hospital in February 2018, she said that her clinicians said that it would be detrimental to her mental health if she was not to reside at the home but it was clear by then that the family had already moved her to the Suburb B property and since that time, she has remained there.
The wife then set out further details in her second affidavit much of which related to her convenience. Those matters do not address the legal question about why it would be proper to make the orders. I refer to those matters again below.
The husband's evidence did not disagree with a substantive detail. In addition to dealing with the uncontroversial matters to which I have already referred, he said that this health problem had been going on for 28 years but he denied the wife's assertion that his conduct towards her had created difficulties. I am not in a position to determine those matters now even if they may be said to be relevant.
The husband went on to say that he thought the rental property in Suburb B was modern and the amenities were in excellent condition. He set out all of the matters that he thought were relevant as to why the wife did not really want to return to the home but all of those were the matters to which the wife replied and which I have described, were really matters about her convenience. They included traffic noise, allergies to pollen from plane trees, the walking of pet dogs, and the darkness of a studio at the home. In my view, those are matters that can be determined at trial.
Subsection 114(1) of the Family Law Act 1975 (Cth) provides that in a proceeding of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(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. The power in s 114 includes exclusive occupancy of a home.
The authorities which have long guided this Court say that it is not necessary to show that it is impossible or intolerable for a party to continue in co-occupation of the house with the other party or that there has been some conduct which justifies exclusion from the home. All that is necessary is that the Court should regard the situation between the parties as being such that would not be reasonable or sensible or practical to expect them to continue to remain in the home together. (See Davis & Davis (1976) FLC 90-603)
The authorities also make clear that in many cases, hardship of some sort will usually occur to either party so degrees of hardship can be important but is it also relevant in determining what is “proper” for the Court to explore the appropriateness of other remedies before an order is made for the removal of a party from their home. That is pertinent here because of the matters already raised including the fact that the wife has existing accommodation which, it would seem, she hoped that the husband would take over from her.
In S and S [2002] FamCA 59 the Full Court (Kay, Holden & Monteith JJ) said that the criteria to be applied when determining a sole use and occupation application were vague. Their Honours referred to Davis and the subsequent Full Court decision also called Davis (1983) FLC 91-319 and then Sieling v Sieling (1979) FLC 90-627. In Sieling there was a “general discussion” about the s 114 power in which the Full Court observed that it was discretionary power “not to be exercised lightly” and the Court had to balance the hardship to each of granting or refusing the order sought or opposed. Any order had to impose no further restriction than was necessary to achieve the “protection of the applicant’s interest”. Their Honours went on to say:
[78,264](the Court) will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the martial relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party” (my emphasis).
In S & S the Full Court (at [38]) said that an injunction prohibiting a person from living in their home should only be granted in restricted and exceptional circumstances. Here, the nature of what the wife wants to do is restrict the husband from living in the home. Whether that is temporary or not remains to be seen. Nothing precludes the wife from living in the home too but for her to so return would not only be provocative but also confrontational. If those circumstances arose, the Court would have to contemplate what was said in Sieling and S v S.
Apart from the clear guide that a Court should tread warily and cautiously on the evidence such as here where the reality is that the order may be temporary, there is little otherwise to prescribe how the exercise of the Court’s discretion should be exercised. In many ways, it must come down to the balance of convenience. In this case, the factors relevant to that exercise are that the wife has already left the home and been out of it for some months whilst at the same time, has financially secure premises in which to live. There is the issue of the adult son about whom I know little but the parties do not agree on how the wife’s return to the home would impact upon him. Normally, as the son is an adult, that consideration would be of low priority but the evidence supports the conclusion that there is a medical problem. The most powerful factor here is that the evidence is unclear as to whether or not the wife could retain the home and at this stage, she has not pleaded that relief with particularity. If she could not afford to retain it, bearing in mind that it is encumbered, another move would be necessary. I reject to the need to return for health reasons as a basis to make such an order for the reasons earlier outlined.
In my view, the balance of convenience favours leaving the situation as it is until trial.
The application for sole occupancy must therefore fail on the basis that would not be proper the Court to exercise its discretion on the facts of this particular case as I have outlined above.
The third aspect of the wife's claim relates to spousal maintenance. Based on a rejection of her exclusive occupancy claim, she now seeks $1350 per week. It is not controversial that the husband has agreed to pay:
a)vehicle expenses but not petrol;
b)the wife's mobile telephone;
c)the wife's private health insurance;
d)“gap” costs of medical expenses;
e)the costs of the maintenance and running of the former matrimonial home;
f)the wife's taxation.
The wife also seeks that the husband pay her usage of a credit card for “extraordinary expenses” up to a cap of $5000 per month after the existing debt of $29,000 is paid out. The husband does not agree to that although it is not entirely clear why. I return to that subject below.
The husband's case is that the wife does not meet the threshold requirement of needing maintenance albeit that she satisfies the criteria in s 74 of the Act. What he argues is that she can support herself adequately without maintenance.
Section 72 of the Act provides that a party to a marriage is liable to maintain the other party to the extent that the payer is reasonably able to do so, if, and only if, the payee is unable to support themselves adequately by reason of one of the matters set out in s 72(1) of the Act but having regard to any relevant matter referred to in s 75(2) of the Act.
The power of the Court to make an order for spousal maintenance is sufficiently wide to say that the Court can make such order as it considers proper but that must be subject to the rights referred to in s 72 of the Act.
Section 75 of the Act (as referred to in s 72 of the Act) contains a checklist of matters to be taken into account and they are mandatory considerations. It is simple to deal with them here. The parties are advanced in years and the wife's health is clearly not good. Their respective financial positions is said to be somewhat unclear because of the evolving valuation issues predominantly around the real property and the husband's interest in his professional practice. It seems to me that each of those issues will be resolved relatively soon. Another matter to be taken into account is the commitments of each of the parties that are necessary to enable them to support themselves. Having regard to s 75(2)(g) of the Act which makes reference to the standard of living that in all the circumstances is reasonable, “commitments” must be viewed in that light. The wife's commitments are relatively modest in the sense of the word “obligated”. She clearly needs accommodation and I have rejected the prospect of her immediate return to the home so therefore she should be entitled to accommodation whilst not necessarily consistent with that of the former matrimonial home, at least that which is comfortable. In my view, the husband's evidence should be accepted that the property that she currently leases fits into that category.
There is no suggestion here that the wife is eligible for any government benefits but she is entitled to the benefits under the superannuation scheme that the parties had set up during their lives together. In respect of the wife, that fund is now in its payment phase and things have been put in place so that a portion of her entitlement as a member of the fund, is now paid in the form of a pension. The rate of that pension is $7500 per month but it is not entirely clear what, if any, increase there could be on that sum having regard to the fact that there is an un-drawn capital sum to which she is otherwise entitled as a member of the fund.
Section 75(2)(h) of the Act also requires the Court to contemplate the extent to which the payment of maintenance would increase the earning capacity of the payee. That could not arise here having regard to her age and state of health.
There is no argument in this case that the wife has been anything other than a diligent home maker and parent. As such, she has contributed to the earning capacity as well as the property and financial resources held by the husband and he does not dispute that.
Section 75(2)(n) of the Act requires the Court even in a spousal maintenance case to consider the terms of any order made “or proposed to be made” under s 79 of the Act in relation to the property of the parties. Unfortunately here, there is a substantial dispute between the parties as to the value of the equity. From the wife's perspective, the amount of property is substantial whereas the husband's position is that it is modest having regard to the debt obligations that he has. I am not in a position to make any finding about that and as I have already mentioned, the parties have a dispute about who can retain the former home.
The Court is also entitled to take into account any other fact or circumstance which the justice of the case requires to be taken into account. I take into account here that there is little dispute about how the properties should be divided and that apart from clarifying the valuations, the dispute should be resolved quickly and each of the parties will still be relatively comfortable. The husband continues to work as the major holder of the interest in a business partnership but that can only be relevant in terms of its value if the other members of the partnership are cooperative in the payment of interests because failing that, the partnership would be dissolved and the interests would be divided according to the percentages that each partner holds. I am not of the position therefore to have any clear understanding of what the property interests of each of the parties in this case currently is.
I return below to the authority upon which the wife relied which focuses on the use of capital for the purposes of spousal maintenance.
Before doing so, the respective cases need to be understood.
Much of the focus of the husband's counsel was ultimately on part N of the wife's financial statement. That particular document along with the rest of her financial statement seemed to me to be consistent with paragraph [42] of her affidavit. In all of those documents, the wife claimed her average weekly expenses came to $2093 plus rent. Counsel for the husband correctly observed that some of those expenses are currently being met by the husband and he has agreed to continue to meet them.
For example, the wife's mobile telephone, her medical expenses including physiotherapy and her health insurance are met by the husband. In respect of the latter, the wife did not claim some of those expenses. Thus, $2093 should be immediately reduced to $1832. However, she currently has an obligation of $867 per week rental to pay. Thus her outlay is $2699 if the figures that she has portrayed are not challenged. Indeed, counsel for the husband did challenge them.
Counsel for the wife responded to the husband's challenge by saying that his approach was unfair as the husband's own expenditure exceeded that of the wife. That is true in respect of some expenses but those are also where the husband is paying his and the wife's expenses as outlined earlier. Other expenses such as food and household supplies were not all that significantly different and might indeed reflect the parties’ respective lifestyles.
There is a temptation to adopt the husband's counsel’s approach that the wife does not need to spend much on such things as petrol because she has no need to travel. That too is artificial because the wife was not given an opportunity to respond to the assertions. Here it is important to observe what the Full Fourt said in Mitchell and Mitchell (1995) FLC 92-601. The Full Court, Nicholson CJ, Fogarty and Jordan JJ said:
[81,995] …the question whether the applicant can support herself "adequately" is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in s. 75(2) and more specifically the paragraphs of that sub-section identified above.
The identified subsection paragraphs have more or less mirrored what I have already set out above from s 75(2) of the Act.
The Full Court went on to say:
Nor is that question to be determined upon a "subsistence" level, as earlier cases under State maintenance legislation suggested.
Here, the standard of living of the parties must be seen to be affluent. Such things as holidays, hobbies and entertainment were claimed by the wife at $514 per week whereas the husband claimed he spent only $160 on the same activities. The parties have a holiday property which is part of the assets to be divided and it was said that the wife used that at her leisure. It is also poignant to remember that these claimed amounts have been done on an averaging basis and it is not suggested that such things as holidays (for example), are taken every week.
As the final hearing is still some months away but otherwise the dispute is modest, I consider I should ignore the wife's expenditure of $514 save for $100 which counsel for the husband considered was appropriate to allow for hobbies. I do so on the basis that there is also capital available to her should she need it for that particular purpose bearing in mind that it is discretionary expenditure.
Thus, I consider her appropriate weekly expenses are $2699 (being that which she has claimed and her rental) less $414 for the holidays and hobbies leaving her with an average weekly expense of $2285.
The wife's current income is drawn from her pension through the self-managed superannuation fund. She receives $1730 per week ($7500 per calendar month). That sum is guaranteed. Her shortfall is therefore $2285 less $1730 which is $555 per week.
Counsel for the husband submitted that the wife had no right to seek spousal maintenance because as it currently stands, her superannuation account has a balance of $1.3 million. Whilst there may be some argument about the liquidity of that account, there is no doubt that the money is there. It was also put and not denied by the wife that she can draw from her superannuation account by virtue of her age, state of health and presumably retirement entitlement. It was submitted on behalf of the husband that if the wife needed money she could take it including that which she currently needs to pay her lawyers. Thus, the husband's case is that the wife has the capacity to meet her own expenses.
I have already quoted the wife's expenses which she set out in some detail. She also made reference to another property other than the one she is currently renting and anticipated that if she took some other property than that at Suburb B, it would cost her more money. As no specific property was mentioned and no details as to why that was really necessary, I have ignored that prospect.
As the wife’s only income is $1730 per week, the question is whether she has access to other money upon which she could support herself “adequately” without maintenance but having regard to the relevant matters in s 75(2) of the Act.
Counsel for the wife submitted that the husband's proposition that his client could draw extra from the superannuation fund should be rejected on the basis that she should not have to do so based on the principle set out by the Full Court in Mitchell (supra). It is worth noting exactly what the Full Court said.
On the question of spousal maintenance, the Full Court said that was necessary to determine the issue having regard to the standard of living of the parties in the financial circumstances of the person who is expected to pay. The Full Court then said:
The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself "adequately". Where the line is to be drawn will depend upon the circumstances of individual cases.
In my view, this is not a case where the wife is being asked by the husband to “use up all her assets and capital” to satisfy the adequacy requirements. He points to the fact that the money is there in the wife's superannuation account and she has access to it. The wife should therefore have to consider the use to which her capital is being put, bearing in mind that it is currently earning interest and, presumably, she could reconstruct the pension component. Equally, a lump sum could be drawn from a variety of ways (for example, a splitting order against the husband’s share) and any of those matters could be adjusted at trial.
A significant amount of legal and emotional energy in this case was devoted to what can only be described as the recalcitrance of the husband in respect of his obligation to disclose documents. He presented his “mea culpa” is in his affidavit but I accept the wife's counsel’s submission that the absence of that initial cooperation was not acceptable as it set the wife the task of not only finding out what the relevant financial position was but how she could expect to support herself. Having accepted the husband's position of contrition, I expect him to do all things necessary to ensure that the wife has access to either the income from the superannuation fund immediately or to a lump sum of capital to tide her over for the weekly shortfall to which I have referred. Any matter otherwise could be adjusted either under s 79 of the Act or alternatively s 83 of the Act if the maintenance application continues. I am intending that the dismissal of the wife's application for spousal maintenance to be a matter that can be reviewed appropriately at trial when the financial circumstances are much better known.
Finally, the issue of the outstanding credit card debt seems to me to be modest but as it was put by the wife, its use was only the situation where she could not afford cash otherwise. I consider the husband should pay that outstanding arrears to be consistent with the other agreed expenses he has always paid. As for the ongoing use of the card as proposed by the wife, I see no reason why that should be distinguished from the wife's capacity to pay such unusual expenses from capital. I therefore reject her need for the husband to be responsible for the potential for future capped debt. In so ordering, I do not use t espousal maintenance power, but rather the power under s 79 of the Act to protect the assets of the parties. The husband has access to funds that could be used for that purpose.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 October 2018.
Acting Associate:
Date: 15 October 2018
0
2
1