Plongeon and Plongeon
[2007] FMCAfam 456
•25 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PLONGEON & PLONGEON | [2007] FMCAfam 456 |
| FAMILY LAW – Spousal maintenance – whether application is urgent or interim – procedure – case management considerations – whether wife can adequately support herself. |
| Family Law Act 1975 (Cth), ss.72(1), 74, 75(2) & 77 Federal Magistrates Act 1999 (Cth), ss.3, 14 & 42 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 4.01(2) and (3), 4.05(1) and (2) |
| Adams v Lambert (2006) 3 ABC(NS) 835; [2006] HCA 10 Galitsis & Galitsis [2007] FamCA 328 Goodall v Nationwide News Pty Limited [2007] FMCA 218 In the Marriage of Malcolm (P.S and C) (1977) 28 FLR 125; (1977) FLC 90-220 In the Marriage of TM and PL Ashton (1982) 8 Fam LR 675; (1982) FLC 91-825 Sali v SPC Ltd (1993) 116 ALR 625 Saxena & Saxena (2006) FLC 93-268 State of Queensland and Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 Tate & Tate (2000) FLC 93-047 Williamson & Williamson (1978) FLC 90-505 |
| Applicant: | RACHELLE BUHAY PLONGEON |
| Respondent: | MICHEL PLONGEON |
| File Number: | DNC 303 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 27 June 2007 |
| Date of Last Submission: | 27 June 2007 |
| Delivered at: | Brisbane (by telephone to Darwin) |
| Delivered on: | 25 July 2007 |
REPRESENTATION
| For the Applicant: | Ms. L. A. Morgan |
| For the Respondent: | Mr. M. Briggs |
DECLARATIONS AND ORDERS
The Court Declares that:
the application is not an application for urgent spousal maintenance;
the application can and will be treated and considered as an application for interim spousal maintenance;
and the Court Orders that:
the application for interim spousal maintenance be dismissed;
the matter be adjourned to 21 August 2007 at 9.30 am for further directions in relation to the application for final spousal maintenance orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
DNC 303 of 2007
| RACHELLE BUHAY PLONGEON |
Applicant
And
| MICHEL PLONGEON |
Respondent
REASONS FOR JUDGMENT
Hearing and Orders
This matter was heard by the Court in Darwin on 27 June 2007. Declarations and orders were made by the Court on 29 June 2007. Due to the exigencies of time and other hearings, the Court gave a brief summary of the reasons for judgment at the time, and indicated that it would publish written reasons for judgment in due course. These are those written reasons for judgment.
Application
The Application exhibits some confusion. The form of application describes it as being for interim orders. In the body of the application it is said to be for urgent spousal maintenance. Under the Family Law Act 1975 (Cth) (“FL Act”) there is said to be a fundamental distinction between urgent spousal maintenance and interim spousal maintenance applications.[1] Therefore, there is a preliminary issue to be dealt with as to the nature of the application.
[1] In the Marriage of TM and PL Ashton (1982) 8 Fam LR 675 at 676 per Nygh J; (1982) FLC 91-825 at 77613-77614 per Nygh J (“Ashton”); In the Marriage of Malcolm (P.S and C.) (1977) 28 FLR 125; (1977) FLC 90-220 (“Malcolm”).
History of application
The Application was filed on 29 May 2007.
The Application does not indicate whether it was made under any particular section of the FL Act. However, Annexure “B” to the Application is headed up “INTERIM ORDERS SOUGHT BY WIFE”, and seeks an order that the “matter be listed ex parte as a matter of urgency and dealt with in the absence of the husband”, and a further order for a sum “by way of urgent spousal maintenance”.
In the Application the Wife (Rachelle Buhay Plongeon, the Applicant) sets out the orders sought ex-parte:
a)to restrain the disposition of property by her Husband (Michel Plongeon, the Respondent), namely, a residential unit at 2/13 Hauser Court, Northlakes, Northern Territory and a RAV 4 Toyota Motor Vehicle;
b)for urgent spousal maintenance of $200.00 per week;
c)for provision of details of the Husband’s superannuation, taxation, and books of account for his painting business;
d)for the Husband to continue to meet the outgoings on the residential unit, and allow the Wife to remain and exercise quiet enjoyment of the property;
e)for the Husband to vacate the residential unit; and
f)for non-denigration.
The Wife also filed on 29 May 2007 the following:
a)affidavit (“Wife’s First Affidavit”); and
b)financial statement (“Wife’s Financial Statement”).
The matter came before the Court on 5 June 2007, before Federal Magistrate Terry.
The Court noted the following undertakings and made the following orders:
UPON NOTING THAT:
A. The Husband undertakes not to dispose of or deal in any way with the property at 2/13 Hauser Court, Northlakes (The “Property”)
B. The Husband undertakes not to dispose of or deal in any way with the Toyotal Rav 4 vehicle registration No 750-341 (NT) and the Wife may… continue using it.
THE COURT ORDERS BY CONSENT THAT:
1. The Husband will provide to the wife within 28 days:
(a) the Husband’s superannuation entitlements from all funds.
(b) the Husband’s income tax returns/statements for the last two years.
(c) the Husband’s books of accounts for his painting business for the last 3 years.
2. That prior to the resolution or settlement or the granting of final orders in relation to property the Husband will meet all mortgage, water, electricity, sewerage and rate payments with respect to the property.
3. The Husband will not denigrate the wife directly or to third parties.
4. The parties will both reside in the property and exercise quiet enjoyment until any further order of the Court.
Other procedural orders were made, including the adjournment of the “application for spousal maintenance”[2] to 9.00am on 27 June 2007.
[2] Orders, 5 June 2007, order 5.
The Husband filed on 19 June 2007 the following:
a)affidavit (“Husband’s Affidavit”);
b)financial statement (“Husband’s Financial Statement”); and
c)a Response to Application for Final Orders (“Response”).
The Wife sought leave to file a further affidavit, in Court, on 27 June 2007 (“Wife’s Second Affidavit”), and there being no objection, leave was granted.
Urgent or interim spousal maintenance
Under the FL Act, there is a fundamental distinction between urgent spousal maintenance applications and applications for interim spousal maintenance.
In Ashton the Family Court noted that urgent and interim spousal maintenance are “basically different”.[3] An urgent spousal maintenance application under s.77 of the FL Act might have to be heard ex parte, or on such evidence as can be provided in the time available, whereas an interim spousal maintenance application only differs from a final spousal maintenance application by reason of the order resulting being an order until further order rather than a final order.[4] On an application for interim spousal maintenance all of the normal procedures under s.74 of the FL Act must be observed.[5]
[3] Ashton, FamLR at 676 per Nygh J; FLC at 77-613 per Nygh J.
[4] Ashton, FamLR at 676 per Nygh J; FLC at 77-613 per Nygh J.
[5] Ashton, FamLR at 676 per Nygh J; FLC at 77-614 per Nygh J.
In Malcolm it was said that urgent spousal maintenance orders are to be made “to provide emergency funding … where the court is unable to determine immediately what order should be made.”[6] In Williamson & Williamson[7], in a passage oft since repeated, the Family Court said that s.77 orders were determined pragmatically, “without any real hearing upon the merits”, as a stop gap measure for a definite period.[8]
[6] Malcolm, FLR at 127 per Watson SJ; FLC at 76-145 per Watson SJ.
[7] (1978) FLC 90-505 (“Williamson”).
[8] Williamson at 77-650 per Fogarty J.
Significantly, in Ashton it was said that an urgent spousal maintenance application can not be converted to an interim spousal maintenance application: so as to “merely re-label what in effect is an application for urgent maintenance.”[9]
[9] Ashton, FamLR at 676 per Nygh J; FLC at 77-613 per Nygh J.
The Federal Magistrates Court Rules, 2001 (Cth) (“FMC Rules”) make provision for urgent applications “where service on the respondent is not practicable”, and provide for orders on urgent applications “until a specified time or until further order.”[10] The FMC Rules also provide that an application for final orders may include an application for interim orders, and that a person filing an application, whether seeking final or interim orders, must file an affidavit stating the facts relied on.[11] Likewise, any response to an application, whether seeking final or interim orders, must attach an affidavit stating the facts relied on.[12]
[10] FMC Rules, r.5.01.
[11] FMC Rules, rr.4.01(2) and (3) and 4.05(1) – but an affidavit need not be filed for an application for interim orders if the evidence relied upon is in an affidavit or affidavits filed in the pending proceeding: FMC Rules, r.4.05(2).
[12] FMC Rules, rr.4.01(2) and (3) and 4.05(1) – but an affidavit need not be filed for a response to interim orders if the evidence relied upon is in an affidavit or affidavits filed in the pending proceeding: FMC Rules, r4.05(2).
The Application is, in form, an application for interim orders, but in the body thereof expressed to include orders for urgent spousal maintenance as well as seeking the other orders set out above.[13]
[13] See paras. 4-5 above.
The procedural history of the application is otherwise set out above.[14] It is noted that service of the Application must have been practicable: the parties lived under the same roof, and still do,[15] and both Application and Response were filed with accompanying affidavits.[16]
[14] See paras. 3-11 above.
[15] See para. 8 above and para. 37 below.
[16] See paras. 6 and 10 above.
Approximately four weeks passed before that part of the Application seeking urgent spousal maintenance hearing was heard.[17] For whatever reason it was not sufficiently pressed, or pressing, to be heard ex parte before the first Court date on 5 June 2007, and was not heard on the first Court date of 5 June 2007.
[17] From the filing of the Application on 29 May 2007 to the hearing of the spousal maintenance issue on 27 June 2007.
The evidence (the affidavits and financial statements) is sufficient for an interim hearing. In particular, the evidence filed by the Wife with the Application was sufficient for an interim hearing. The evidence is sufficient (but not wholly satisfactory) for a final hearing.
In the circumstances, although it is said in the body of that part of the Application seeking interim orders that an order for urgent spousal maintenance is sought, the form and procedural history of the Application makes it very difficult to characterise the Application as one for urgent spousal maintenance. The Court concludes that the Application is not an application for urgent spousal maintenance. It is an application for interim spousal maintenance and will be treated as such.
Even if the application is one for an order for urgent spousal maintenance, can it, contrary to what was said in cases such as Ashton & Malcolm, be considered as an interim spousal maintenance application? To determine this question the relevant statutory provisions need to be considered.
The relevant provisions of the FMC Rules relating to the types of applications which may be made are dealt with above.[18]
[18] See para. 16 above.
Sections 3, 14 and 42 of the Federal Magistrates Act 1999 (Cth) (“FM Act”) provide as follows:
3 Objects
(1) The main object of this Act is to create the Federal Magistrates Court under Chapter III of the Constitution.
(2) The other objects of this Act are:
(a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
(b) to enable the Federal Magistrates Court to use streamlined procedures; and
(c) to encourage the use of a range of appropriate dispute resolution processes.
14 Determination of matter completely and finally
In every matter before the Federal Magistrates Court, the Federal Magistrates Court must grant, either:
(a) absolutely; or
(b)on such terms and conditions as the Federal Magistrates Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
42 Federal Magistrates Court to operate informally
In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
Rule 1.03 of the FMC Rules provides as follows:
1.03 Objects
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
to operate as informally as possible
to use streamlined processes
to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
avoid undue delay, expense and technicality
consider options for primary dispute resolution as early as possible.
(5) If appropriate, the Court will help to implement primary dispute resolution.
In Goodall v Nationwide News Pty Limited[19] this Court, albeit in a very different context,[20] considered the operation of ss.3 and 42 of the FM Act, and r.1.03 of the FMC Rules, and said:
[19] [2007] FMCA 218 (“Goodall”).
[20] In Goodall the issue before the Court concerned the exercise of the Court’s discretion to allow evidence to be taken by video link.
“Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.” [21]
[21] Goodall at para. 21 per Lucev FM.
These observations are apposite here, and read together with the requirement in s.14 of the FM Act to “grant … all remedies to which any of the parties appears to be entitled” it is apparent that the Court can treat the matter as an interim spousal maintenance application. To do so, ensures that :
a)the proceedings are not protracted;
b)the proceedings are resolved justly and efficiently;
c)procedures are streamlined;
d)undue delay, expense and technicality are avoided; and
e)a remedy which is available, will be granted, if it is justified in the circumstances of the case.
The Court’s view that the Application can be treated as an interim spousal maintenance application is reinforced by a number of other factors.
First, as indicated above, the FM Act and FMC Rules, which provide for simplicity, streamlining and expedition, are relatively recently enacted provisions which should therefore be given the fullest possible effect.
Secondly, by reason of the enactment of the FM Act and FMC Rules cited above, Ashton, Malcolm and Williamson can be distinguished. Parliament and this Court have put in place new procedures designed to streamline the conduct of this Court’s business. Further, those cases are distinguishable by reason of the fact that the relevant FL Act provisions considered in those cases are sources of power to make orders, but are not determinative of the relevant procedure in making such orders. The FM Act and FMC Rules provisions referred to above are determinative of relevant procedure in this Court in making orders.
Thirdly, the approach adopted by the Court is consistent with modern principles of case management, which seek to ensure that justice is done,[22] and which prefer substance over form.[23] Ashton exemplifies the vice that the approach adopted by this Court outlined above,[24] and modern principles of case management, seek to overcome. In Ashton the s.77 FL Act urgent spousal maintenance application had been dealt with by one judge of the Family Court, and then a Full Court of the Family Court, which referred it back to a single judge of the Family Court. When the matter came on before that single judge,[25] the wife’s circumstances had materially changed, such that she was no longer in need of urgent relief. The Wife sought to substitute an application for interim spousal maintenance, which “to a certain extent” sought the same relief as was sought under the urgent spousal maintenance.[26] That application, for interim spousal maintenance, was treated as a fresh application, the hearing was treated as the first return date, and the usual directions made, with a proviso that if the wife felt that there was any reason to deal with the application urgently, “an appropriate application can be made to the Registrar, … [which] may well, in view of the vicissitudes of this case to date, receive a sympathetic hearing.”[27]
[22] Sali v SPC Ltd (1993) 116 ALR 625 at 636 per Toohey and Gaudron JJ; State of Queensland and Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154 and 155 per Dawson, Gaudron and McHugh JJ, at 166 per Kirby J; Tate & Tate (2000) FLC 93-047 at paras. 99-107.
[23] Adams v Lambert (2006) 3 ABC(NS) 835 at 843-846 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; [2006] HCA 10 at paras. 26-28 and 32-35 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ (“Adams”). Albeit that Adams was a bankruptcy case it highlights the modern approach preferring substance over form.
[24] See paras. 23-29 above.
[25] Nygh J, who had not heard the matter originally, that having been done by Hogan J: Ashton, FamLR at 675 per Nygh J; FLC at 77613 per Nygh J.
[26] Ashton, Fam LR at 675 per Nygh J; FLC at 77-613 per Nygh J.
[27] Ashton, Fam LR at 676 per Nygh J, FLC at 77-614 per Nygh J.
Having regard to the FM Act and FMC Rules and the further issues referred to above, the Court considers that in this Court:
a)urgent spousal maintenance applications can be treated as interim spousal applications, provided, as here, there is evidence enabling the Court to deal with the application as an interim spousal maintenance; and
b)separate urgent and interim spousal maintenance applications may be made, and dealt with apart, consecutively or together dependent upon all of the circumstances of a particular case.
This Court will hear this Application as an interim spousal maintenance application, which is it what it appears to have always been. However, even if it is an urgent spousal maintenance application, the Application might still be heard by this Court as if it were an interim spousal application because of the manner in which the Application has proceeded, and because of the procedural flexibility inherent in the FM Act and FMC Rules.
Evidence
The Court has had regard in this hearing to the affidavit evidence (including financial statements) and not to statements given from the Bar table, unless uncontroversial or about matters of which judicial notice might be taken.
Basic Facts
The Wife and Husband commenced a relationship in 2000.[28]
[28] Wife’s First Affidavit, para. 3; Husband’s Affidavit, para. 4.
The Wife and Husband were married on 3 September 2003.[29]
[29] Wife’s First Affidavit, para. 4; Husband’s Affidavit, para. 4.
There are no children of the marriage.[30]
[30] Wife’s First Affidavit, para. 5, Husband’s Affidavit, para. 5.
The Wife and Husband separated and have been living under one roof since 29 March 2007, and remain so, consequent upon the Husband’s undertaking not to dispose of the residential property, and the consent orders allowing both parties quiet enjoyment of the residential property.[31]
[31] Wife’s First Affidavit, para. 6; Husband’s Affidavit, para. 6.
Income
The Wife is unemployed at present, and has earned no wage or salary since an unspecified date in 2006.[32]
[32] Wife’s First Affidavit, paras. 6 and 44; Husband’s Affidavit, para. 44.
The Wife currently receives a Newstart Allowance of $221.25 a week.[33]
[33] Wife’s First Affidavit, para. 32.
There is no evidence that the Wife derives any income from a house she co-owns in the Philippines (and which the Wife’s Father and Brother live in).[34]
[34] Husband’s Affidavit, paras. 36 and 52; Wife’s Second Affidavit, para. 12.
The Wife asserts the Husband used to give her $50.00 per week for groceries, but says he has not done so since late April – early May 2007.[35] This is not disputed by the Husband; nor is it asserted by the Wife that the sum is insufficient.
[35] Wife’s First Affidavit, para. 8.
The Husband is a self-employed painter with an estimated weekly income of $1,200.00.[36]
[36] Husband’s Financial Statement, items 11 and 16.
Expenditure
The Wife first sets out her expenditure in the Wife’s Financial Statement, as being $221.00 a week (essentially the amount of Newstart Allowance) as follows:
$100.00 food
$50.00 petrol
$20.00 entertainment/hobbies
$20.00 pharmaceuticals
$20.00 hairdressing/toiletries
$11.00 other
Total $221.00[37]
[37] Wife’s Financial Statement, items 32 and 60.
A slightly different expenditure distribution is set out in the Wife’s Second Affidavit as follows:
$100.00 food
$50.00 toiletries/medications
$25.00 petrol
$25.00 mobile [telephone]
$20.00 emergencies and or bills (eg) Doctors.[38]
This amounts to $220.00.[39]
[38] Wife’s Second Affidavit, para. 5.
[39] There is no provision, perhaps curiously, for hairdressing, as there was in the first expenditure statement.
The Husband sets out his expenditure as follows:
$400.00 Income Tax
$20.00 Rates/Levies
$62.00 Income Protection
$40.00 Vehicle Registration
$453.00 Hire Purchase/loan/credit card repayments
$270.00 Other Expenditure
Total $1,245.00.[40]
[40] Husband’s Financial Statement, item 32.
The Husband’s other expenditure is detailed as follows:
$100.00 food
$30.00 electricity
$25.00 phone
$70.00 petrol
$50.00 vehicle maintenance
$10.00 clothing/shoes
$20.00 entertainment/hobbies
$30.00 holidays
$15.00 gardening/lawnmowing
$20.00 hairdressing – toiletries.[41]
[41] Husband’s Financial Statement, item 60. This amounts to $370.00 not $270.00.
In broad terms, the Husband’s income is equal to or exceeded by his expenditure.
A not insignificant attack was made by the Wife as to some of the Husband’s alleged expenditure.
Vehicle maintenance of $50.00 per week was suggested to be excessive. The Husband is responsible for the maintenance on two older vehicles (1992 and 2000), and by inference (because the Wife is not expending money for vehicle maintenance) on the reasonably new Toyota RAV 4, driven by the Wife. At least one of the older vehicles the Husband has to use in his painting work. Vehicle maintenance is therefore essential to income maintenance.[42] In those circumstances to suggest that $50.00 a week (or approximately $2,600.00 a year) in total or less than $17.00 a week (or approximately $885.00 a year) per vehicle, is excessive is not an argument which, on the materials presently before the Court, can be upheld.
[42] Wife’s Financial Statement, item 35; Husband’s Affidavit, paras. 11, 12, 14, 18, 24, 33, 54 and 55; Husband’s Financial Statement, items 40 and 60.
The Husband’s $20.00 a week for entertainment/hobbies was said to be unreasonable. Without further evidence, the Court would not consider that to be unreasonable. The Court notes that the Wife’s Financial Statement had a sum of the same amount listed for entertainment/hobbies: a sum which has since been withdrawn.[43]
[43] Wife’s Financial Statement, item 60; Wife’s Second Affidavit, para. 5.
The Wife also attacked the $30.00 a week for holidays. Both Husband and Wife have family overseas, the Wife in the Philippines, the Husband in France.[44] The amount of $30.00 a week for holidays, does not, in the circumstances, seem excessive.
[44] Wife’s Second Affidavit, paras. 9, 11 and 14.
The Husband’s $15.00 a week on gardening/lawnmowing was also attacked by the Wife as excessive. There was no evidence as to the size and character of the garden concerned, but the Court notes that Husband and Wife live in a residential unit, from which the Court infers that the garden is not as large as it might ordinarily be. The evidence indicates that the Husband is a 61 year old in good health. Neither his age nor his health is an impediment to gardening/lawnmowing. Even allowing for the demands on a self-employed businessman on a modest, fairly average income ($1200 per week, or approximately $62,400.00 a year) $780.00 a year for gardening/lawnmowing seems excessive. It might be argued (but was not put to the Court by the Husband) that there is some financial utility in having a lawnmowing person so as to save on the capital expense of a lawnmower, and the ongoing expenses of fuel and maintenance, and there is probably some force in that argument. The Court would think that lawnmowing expenses of $7.00-8.00 a week might be appropriate.
The Wife also attacked the Husband’s $20.00 a week for hairdressing and toiletries. The Court can infer that the Husband has to have his hair cut, and buy soap, shampoo, deodorant, razors and, particularly given his occupation, sunscreen. In the circumstances, $20.00 a week does not seem unreasonable.
The Court has had to make the above interim findings without the benefit of the evidence currently before the Court being able to be challenged, and by drawing appropriate inferences from all of the evidence. No doubt if the matter reaches a final hearing the financial evidence and information will be challenged, and the Court will be able to make final findings.
What the above analysis does however reveal is that for present interim purposes, the Husband’s weekly expenditure, on any analysis, equals or exceeds his weekly income.
Property
The Wife has (or had as at 19 May 2007) $21.00 in the bank.[45]
[45] Wife’s Financial Statement, item 37.
The Wife claims she owns (by way of gift) the Toyota RAV 4 motor vehicle, worth $30,000.00.[46] Ownership is disputed by the Husband, who says the RAV 4 is registered in his name and subject to a hire purchase agreement with Esanda (for which he makes the payments).[47] It is not possible at this stage, without the evidence being tested, and without the registration details and hire purchase agreement being before the Court, to finally determine this issue.[48]
[46] Wife’s Financial Statement, item 33; Wife’s Second Affidavit, para. 8.
[47] Husband’s Affidavit, paras. 12 and 33.
[48] Interestingly, the Husband has not included the RAV 4 in his list of assets (but has included the sum still owing under the hire purchase agreement as a liability): Husband’s Financial Statement, items 28 and 40.
The Wife claims ownership of household contents valued at $15,000.00.[49] The Wife claims to own property valued at $175,000.00 being 50% of the “Home”,[50] but says the Husband is the registered owner.[51] It is reasonable for the Court to infer that this is a reference to the residential unit. Elsewhere, the Wife says that the residential unit is in the Husband’s “sole name”.[52] The Husband says that he owned the residential unit, and another residential unit, both subject to mortgages, before the marriage. During the marriage the other residential unit was sold, and the proceeds applied to discharge the mortgage on the residential unit, which he says is in his name, and the other residential unit.[53]
[49] Wife’s Financial Statement, item 42.
[50] Wife’s Financial Statement, item 35.
[51] Wife’s Financial Statement, item 35.
[52] Wife’s Financial Statement, item 22.
[53] Husband’s Affidavit, paras. 21-22.
The residential unit is thus unencumbered. Certainly the Husband, as the registered owner, has the capacity (subject to other liabilities) to borrow monies against the residential unit. Subject to the disputed ownership, the Wife may too, but probably not pending the disposition of that dispute. The Wife has valued the residential unit at $350,000.00.[54] The Husband has valued it at $300,000.00.[55] The Wife also co-owns a property in the Philippines, with her ex-husband, valued she says at $5,000.00, and in which her Father and Brother live.[56] No income from the property is disclosed. The existence of the property and its value was only disclosed after the Husband’s affidavit was filed. The Husband had attested to seeing a title deed with the Wife’s name on it.[57]
[54] Wife’s Financial Statement, item 35.
[55] Husband’s Financial Statement, item 35.
[56] Wife’s Second Affidavit, para. 12.
[57] Husband’s Affidavit, para. 36.
The Husband owns two other cars, a 1992 Holden Rodeo and a 2000 Toyota Camry, said to have a combined value of $5,000.00.[58]
[58] Husband’s Financial Statement, item 40.
The Husband estimates his one hundred percent share of the value of the painting business he runs as being $2,000.00.[59] The Husband also owns household contents worth $5,000.00.[60] The Husband has (or had as at 19 June 2007) $250.00 in the bank.[61]
[59] Husband’s Financial Statement, item 41.
[60] Husband’s Financial Statement, item 42.
[61] Husband’s Financial Statement, item 37.
Property Summary
The Wife contends that she has property valued at $220,021.00, of which $205,00.00 is disputed. This does not include the lately disclosed Philippines property said to be valued at $5,000.00.
The Husband contends that he has property valued at $312,250.00, of which $150,000.00 is disputed.
Superannuation
The Wife has $14,000.00 in superannuation.[62]
[62] Wife’s Financial Statement, item 45.
The Husband says he has no superannuation.[63]
[63] Husband’s Financial Statement, item 45.
Liabilities
The Wife says she has no liabilities.[64] Certainly, by reason of the undertakings and consent orders the Wife has no expenses in relation to the property, and continues to use the RAV 4 without hire purchase or maintenance costs.
[64] Wife’s Financial Statement, part K.
The Husband has liabilities of $99,524.00, comprising:
Bank of SA over draft $48,941.00
NAB Visa card $8,368.00
ANZ Mastercard $6,355.00
American Express $3,874.00
Hire Purchase Agreement with Esanda $32,000.00[65]
[65] Husband’s Financial Statement, part K.
The Husband concedes (quite properly, in oral submissions to the Court) that given his excess of assets over liabilities he has the capacity to borrow to meet any urgent spousal maintenance or interim spousal maintenance orders made by this Court.
Wife’s Health
The Wife says she is too ill to work. The Wife’s evidence with regard to her health is as follows:
I suffer from very poor health. I got very sick last year and lost my job because of it. I had an operation in the Philippines for a lung problem. Since the operation I haven’t felt well. This has stopped me from gaining further work.
I am currently losing weight because of stress. When Michel told me everything was over I knew he had another woman and I was very hurt by this.[66]
I was working as a cleaner and have done this for a long time. When I was doing this work I made about $700 pf. I gave up work as a cleaner in 2006 because of my illness – I lost my job.
I am not able to work as a cleaner now because the doctor said the illness may come back if I do this sort of work. Whenever I sweat I cough heavily and this affects my lungs.[67]
I cannot work as a cleaner due to my illness.[68]
[66] Wife’s First Affidavit, paras. 29-30.
[67] Wife’s First Affidavit, paras. 29-30 and 44-45.
[68] Wife’s Second Affidavit, para. 15.
The Husband says as follows:
I do not believe Rachelle suffers from poor health. It is true she was sick last year and had an operation in the Philippines. In my opinion she has fully recovered from the operation and is perfectly capable of obtaining work. Since she ceased working last year she has never attempted to get work again and has relied solely on me. I am not aware that Rachelle has seen any doctors in relation to her claim that she is unwell or that she is not in a position to seek work.
I do not know whether she is losing weight in relation to stress.[69]
[69] Husband’s Affidavit, paras. 29-30.
There is no independent evidence of the state of the Wife’s health. No records or reports were tendered from any hospital, doctor or specialist.
Based on the evidence (or rather lack of it) presented to the Court, the Court cannot find that the Wife has a current illness or medical condition, or a current illness or medical condition preventing her from being employed, either in the immediate past few months or in the immediate future. In any event, such evidence as was tendered about her health by the Wife went only to her suitability for employment in cleaning positions.
Wife’s Language
The Wife’s first language is Tagalog. English is her second language. The Wife says that she does not speak English sufficiently well to enable her to easily gain employment. She says “My English is limited although I can read and write a bit in English”.[70]
[70] Wife’s First Affidavit, para. 51.
The Husband says that the Wife can “speak and understand English perfectly well” and that as a couple they “always convene [converse] in English”.[71]
[71] Husband’s Affidavit, paras. 48 and 49.
The Court notes that the Wife’s evidence is that:
a)she successfully ran a taxi business in Darwin and employed a number of drivers in that business;[72]
b)she worked as a cleaner “for a long time”;[73]
c)she has previously undertaken studies in Pathology at Charles Darwin University, and says that she may go back to study in another course this month (July 2007);[74] and
d)in the week commencing 25 June 2007 she undertook a course in retail training to help obtain work as a shop assistant.[75]
[72] Wife’s First Affidavit, paras. 12-14.
[73] Wife’s First Affidavit, para. 44.
[74] Wife’s First Affidavit, paras. 46 and 52; Wife’s Second Affidavit, para. 17.
[75] Wife’s Second Affidavit, para. 16.
It is difficult to understand how the Wife could have undertaken the activities outlined in (a) to (d) of the previous paragraph without a passable working knowledge of English suitable to obtain employment (albeit perhaps unskilled) in a time of very low unemployment (a fact of which the Court takes judicial notice). That view is:
a)re-inforced by the fact that the Wife has been in Australia for at least 10 years; and
b)consistent with the Husband’s evidence.
In those circumstances, the Court is of the view that the Wife has a sufficient grasp of English to allow her to work (as she has done in the past) in Darwin.
Search for employment
There is no evidence that the Wife has undertaken any search for employment since separation. She has undertaken, but only in the week of the hearing, a retail training course,[76] but that is preparatory to possible retail employment. It is not actually applying for employment for which she might otherwise qualify.
[76] See para. 75(d) above.
Spousal Maintenance – principles
In Saxena & Saxena[77] the Full Court of the Family Court constituted on appeal by a single judge set out four matters that a court at first instance must deal with when considering a spousal maintenance application:
1) to what extent was the spouse able to support themself?
2) what were the spouse’s reasonable needs?
3) what capacity did the other spouse have to meet an order, if one were made?
4) if steps 1-3 favour the spouse, what order would be reasonable having regard to s.75(2)?[78]
[77] (2006) FLC 93-268 (“Saxena”).
[78] Saxena, at para. 39 per Coleman J.
In Galatsis & Galatsis[79] the Family Court said:
“42. It is clear, therefore, there is a threshold the wife has to reach. Before I look at any question about the husband’s capacity to pay, I need to be satisfied that the wife cannot adequately support herself by reason of the matters set out above and in particular having regard to the matter set out in s 75(2) of the Family Law Act.
44. The second limb of the test in s 72 of the Act makes it clear that the husband in this case only has a liability to maintain the wife to the extent that he is reasonably able to do so.” [80]
[79] [2007] FamCA 328 (“Galitsis”).
[80] Galatsis, at paras. 42 and 44 per Cronin J.
The first hurdle for the Wife in this matter is to satisfy the Court that she cannot adequately support herself by reason of the matters referred to in s.72(1) of the FL Act.
The Wife is only 40. There was no evidence that age is an impediment to her supporting herself.
It was argued that the Wife suffered physical incapacity on medical grounds, such that she was unable to support herself. But the evidence (at this interim stage) does not establish those grounds, and in any event the evidence (such as it was) went only to the Wife’s suitability for employment in cleaning positions.
There is no evidence of mental incapacity.
No other adequate reason was argued or put.
In the circumstances, having regard to all of the evidence,[81] the Court is satisfied that the Wife has the capacity to be employed in a position which would enable her to adequately support herself. The Wife has simply not endeavoured to obtain a source of income for her own support.[82]
[81] Particularly the findings at paras. 72, 76-77, 78, and 82-85 above.
[82] Galitsis at para. 33 per Cronin J.
The Court considers the Wife can adequately support herself.
The application for interim spousal maintenance must be, and is, dismissed.
Although it is strictly unnecessary to determine these issues, in view of the dismissal of the application for interim spousal maintenance, the Court indicates that if it is wrong in relation to whether the Wife can adequately support herself, then the Court would have determined the issues thus:
a)that $200.00 per week was reasonable for the Wife’s needs for interim purposes (noting that accommodation expenses would be specifically excluded on the basis of the undertakings and orders in place); and
b)the Husband has capacity to pay $200.00 per week, at least on an interim basis; and
c)$200.00 would be a reasonable sum to award having regard to all relevant factors, especially those under s.75(2) of the FL Act.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: J. Semler
Date: 25 July 2007
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