RAICHE & RAICHE

[2013] FCCA 1206

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAICHE & RAICHE [2013] FCCA 1206

Catchwords:
FAMILY LAW – Interim property orders – urgent maintenance application of wife – release of balance of funds held on trust from the sale of the former matrimonial home to wife – such monies to be characterised at trial.

Legislation:  

Family Law Act 1975 (Cth), ss.72, 74, 75(2), 77

Applicant: MS RAICHE

Respondent: MR RAICHE

File Number: MLC 2747 of 2011

Judgment of: Judge Hartnett

Hearing date: 12 August 2013

Delivered at: Melbourne

Delivered on: 12 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Hamilton

Solicitors for the Applicant: Thexton Lawyers

The Respondent: In Person

THE COURT ORDERS THAT:

1. The balance of funds remaining from the sale of the former matrimonial home situated in [S] in the trust account of the wife’s solicitors be released to the wife forthwith.

2. Such monies are to be characterized as an advance of property settlement or spousal maintenance or a combination of both as determined by the trial judge.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 2747 of 2011

MS RAICHE

Applicant

And

MR RAICHE

Respondent

REASONS FOR JUDGMENT

1. These reasons deal in an extempore fashion with a matter listed in the duty list this morning being an Application in a Case filed 24 July 2013 by the wife seeking that the matter be listed urgently with the necessary times abridged, as in fact occurred, with the wife seeking orders otherwise as follows:-

   “…

   (2)    That the Husband pay to the Wife the sum of $1,000.00 per week by way of spousal maintenance.

   (3)    That the balance of funds remaining from the sale of the former matrimonial home in the trust account of the Wife’s solicitors be released to the Wife. 

   (4)    That the Husband pay the Wife’s costs of and incidental to this application.

   (5)    Such further or other Orders as the Court deems fit.”

2. The wife relies upon an Affidavit sworn by her on 23 July 2013 and filed 24 July 2013.  The husband responded in his Response to an Application in a Case filed 9 August 2013, wherein he sought that the application of the wife be dismissed.  He relies on an Affidavit filed by him in the proceedings and filed and sworn on 9 August 2013. 

3. The parties have competing property applications before the Court which are listed for final hearing hereafter. 

4. The wife’s evidence as to her current financial position is that she is in receipt of a Newstart allowance in the sum of $220 each week (as deposed to in her Affidavit filed 24 July 2013), but as corrected in her oral evidence given in Court this day, the sum of approximately $250 each week.  She sets out her weekly expenses in paragraph 6 of her Affidavit filed 24 July 2013 and those expenses total $1,205.  However, there is an error in the calculation of her expenses in that she inserted a sum of $200 for rental each week twice, and furthermore she claimed separate expenditure of $50 each week on gas and electricity and $200 each week on food.  Her oral testimony was such that the Court could not be satisfied these expenses were in that quantum as claimed. She is now residing in the home of friends and making a contribution to the operating expenses of the household. Her calculations were approximations and overlapped in part in regard to her claimed expenditure for rent, food, gas and electricity.  However, her weekly expenses exceed her income which when looked at, without the Centrelink payment, is a nil income.  Her reasonable expenses so far as they could be determined in an interim hearing of this nature, were in the vicinity of $500 to $600 each week. 

5. The wife’s asset position is that she currently is the registered proprietor of a motor vehicle being a 2001 on her evidence, or 2002 as claimed by the husband, [vehicle omitted] with a value of approximately $16,000.  Otherwise, the approximately $150,000 cash she has already received from the net proceeds of sale of the former matrimonial home at [S] in the State of Victoria (‘the former matrimonial home’), and being an amount paid out to each of the husband and wife in April 2011, has been fully expended by her and she has no savings, no shareholdings, no real property or assets of other description.  She has no superannuation entitlements. 

6. The wife has pending, her claim in respect of the property adjustment proceedings between the parties and that is a matter still to be determined by the Court.  Presently, she has no assets available to her which she could liquidate if required to do so to provide for her support.  I am not therein suggesting that necessarily she would be required to do so.

7. The wife is not living with any other person, although she currently is in a relationship with someone with whom she has holidayed in Australia this year. 

8. The parties were married in 1984 and separated in 2010 after some 26 years of marriage.  During that time, the wife was not employed outside the home.  The wife left the former matrimonial home before returning to it in February 2011, remaining in occupation until its sale later in that year.  The mortgage secured over the former matrimonial home had not been paid by the husband who had previously been in occupation, and the mortgage sum of $7,000 each month was in arrears.  It was necessary for the parties to sell the property.  Each of them received a distribution of the net proceeds of sale, save as to a sum of $20,635.43, which remains in the parties names in a joint trust account held on their behalf by the solicitors for the wife. 

9. The wife is aged 52 years and although after the separation she studied for a six month period and obtained the certificates necessary to become a personal trainer, she is not currently able to obtain employment in that field.  She did obtain employment for a six month period but since the cessation of that employment has been unemployed, and in receipt of Centrelink benefits.  Given her age, her long period out of the workforce during the parties’ marriage with consequent lack of experience and qualifications to currently be gainfully employed, the wife is unable to support herself adequately or at all.

10. The husband was engaged, throughout the parties’ marriage, in gainful employment and he has worked for many years as a [omitted]. His evidence is that his current income is “nil”.

11. As set out in paragraph 5 of his Affidavit sworn and filed 9 August 2013 and in oral evidence given this day, the husband claimed that he has received no earnings for in excess of two years.  His evidence was that he has been consistently employed and resides in a rental property at [T] in the State of Victoria.  He is a shareholder in a company known as [H] Pty Ltd and he is travelling overseas later in this year to investigate and develop business opportunities for that company.  All costs associated with his travel, accommodation and food, he claims, will be paid for by the company.

12. His evidence was further that he has provided a personal guarantee as security for a $1.2 million (approximately) loan from the National Australia Bank in respect of borrowings advanced to the company.  His evidence is that the only security provided in respect of that loan is his personal guarantee.  Despite the husband having no earnings for in excess of two years, he has managed to meet his living expenses and continues to manage to do so.  He has provided a guarantee which remains existing for significant borrowings in his own name.

13. The husband has a clear earning capacity, given his experience in the workforce, in [omitted]; and other related income - producing employment which suggests an earning capacity far greater than an income receipt of zero dollars which he claims to currently receive.  The husband has superannuation entitlements of approximately $49,000 and these, together with his interest in the company, form part of the asset pool and property of the parties to be apportioned between them.

14. Each of the parties are in good health and both have the physical and mental capacity for appropriate gainful employment. The difficulty for the wife is that the long marriage of the parties has affected her earning capacity considerably, whilst it has not impinged upon the husband’s. Neither of them gave evidence that they are cohabitating with another person at the present time. The remaining property of the parties is controlled by the husband. All of these preceding matters are considered by the Court and taken into account, pursuant to s.75(2) of the Family Law Act 1975 (Cth) (‘the Act’).

15. The husband has a liability to maintain the wife, pursuant to ss.72 and 75(2) of the Act. And pursuant to s.74 of the Act, the Court may make such order as it considers proper for the provision of maintenance in accordance with Part VIII of the Act. There is some urgency about this application, the wife being in immediate need of financial assistance, and it is not practicable, in a duty list, to have a full scale hearing of this spousal application beyond that which has occurred today.

16. What has occurred today is that there has been limited cross-examination of each of the parties by the other.  The husband is not prejudiced by payment out to the wife at the present time of the balance of the funds remaining in the joint names of the parties in a trust account, with such distribution to be characterised by the trial judge as an advance on property settlement or as a payment of spousal maintenance or a combination of both, as determined at trial.  There are sufficient other assets if there is any imbalance to the husband on the payment out of this sum to the wife.

17. The wife needs money immediately and has no earning capacity which would provide her with immediate funds. The husband has, by contrast, a significant earning capacity and, in some way, must be meeting his everyday living expenses, although in what manner he does so, save for the payment of some items by credit card, is uncertain. His ability to guarantee a very sizeable loan is also to be explored but these are matters for trial. The Court shall accede to the application of the wife, this being an urgent maintenance proceeding under s.77 of the Act, and make an order for the payment out of funds to her forthwith.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  29 August 2013