Rainier and Rainier
[2011] FMCAfam 119
•18 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAINIER & RAINIER | [2011] FMCAfam 119 |
| FAMILY LAW – Spousal maintenance – young child – shared care arrangement – Mother’s choice to remain on leave from paid employment to be available to parent her child. |
| Family Law Act 1975, ss.72, 74, 75(2)(g), (l), (p), 90K |
| K v P (2008) 216 FLR 445 Mitchell & Mitchell (1995) 19 Fam LR 44 Murkin & Murkin (1980) FLC ¶90-806 Nixon & Nixon (1992) FLC ¶92-308 MS & PS (2006) FLC ¶93-268 In the Marriage of Stein (2000) 25 Fam LR 727 |
| Applicant: | MR RAINIER |
| Respondent: | MS RAINIER |
| File Number: | CAC 1190 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 13 December 2010 |
| Date of Last Submission: | 13 December 2010 |
| Delivered at: | Canberra |
| Delivered on: | 18 February 2011 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr D Farrar |
| Solicitors for the Applicant: | Farrar Gesini & Dunn |
| Solicitor/Advocate for the Respondent: | Ms M Reid |
| Solicitors for the Respondent: | Phelps Reid |
ORDERS
The Applicant Husband pay the Respondent Wife spousal maintenance in the sum of $250 per week with this sum to be paid up until 30th June 2011.
IT IS NOTED that publication of this judgment under the pseudonym Rainier & Rainier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1190 of 2010
| MR RAINIER |
Applicant
And
| MS RAINIER |
Respondent
REASONS FOR JUDGMENT
Introduction
On 30th July 2010 I made Orders which effectively provided for a shared care regime in relation to the only child of the relationship between the parties, 16 month old [X] (the child was born [in] 2009). However, having regard to his young age, [X] spends regular, shorter periods of time with both of his parents rather than blocks of larger time.
There remain issues to be resolved in relation to parenting. They will be addressed by the Court at a hearing in due course.
On 6th October 2010, Ms Rainier filed an Amended Response. The Orders she sought relate to children as well as property. The property orders, on a final basis, concerned (a) certain declaratory or other relief in relation to a financial agreement, and on an interim basis (b) spousal maintenance.
The hearing in relation to the validity (or otherwise) of the financial agreement entered into by the parties is yet to be held.
In the spousal maintenance application, Ms Rainier seeks $1000 per week (according to her Amended Response) or $850 per week (according to paragraph 22 of her Affidavit filed on 6th October 2010).
The reasons that follow relate to the interim spousal maintenance application.
Evidence
Pursuant to section 75(2)(p), in spousal maintenance applications the Court is required to take into account “the terms of any financial agreement that is binding on the parties to the marriage.”
As already intimated, the Court has [now] fixed trial dates to determine the validity, or otherwise, of a financial agreement signed by the parties, dated 10th May 2007. That hearing is fixed for May 2011.[1]
[1] The hearing in May will deal not only with the validity and/or setting aside of the agreement but also the ongoing parenting arrangements, on a final basis, in relation to [X].
Ms Rainier seeks Orders in the alternative, namely, either a declaration that there is no financial agreement or, if the agreement is found to be valid, that it should be set aside pursuant to s.90K of the Family Law Act1975 (“the Act”).
Subject to the matters already noted, particularly in relation to the financial agreement, the evidence for the parties may be summarised as follows.
Ms Rainier is currently on leave from her employment with [company omitted]. Originally, she had been on maternity leave between September 2009 and April 2010. Thereafter she took unpaid leave, and in August 2010, she applied for leave without pay and her reason for doing so was “extended maternity leave and illness.” That leave expired at the end of December 2010. She has further extended her unpaid leave in order to be available to care for [X].
In early June 2010, Ms Rainier was admitted to hospital as a result of contracting an infection. She was hospitalised from 5th June until 15th July.
Ms Rainier contends that her average weekly income is $707 and that her weekly expenses are $850.
Quite properly so, Mr Rainier questions a number of matters in this regard, namely: (a) the extent to which her expenses also include those that relate specifically to the care of [X];[2] (b) the extent of her medical expenses in the light of Ms Rainier also having health insurance; and (c) how and why her leave has been extended when there is in place a shared care arrangement with [X]. In this latter regard, Mr Rainier poses the question, somewhat rhetorically, why Ms Rainier could not rearrange her work commitments and her commitments in relation to [X], so as to enable her to return to work and thereby support herself?
[2] Cf. In the Marriage of Stein (2000) 25 Fam LR 727.
Mr Rainier also questions the extent of Ms Rainier’s expenses in the light of her parents continuing to live with her on a full- or part-time basis. In such circumstances, he poses questions in relation to what shared household expenses (e.g. gas, electricity, etc) arise out of the use of such utilities with them staying with Ms Rainier.
To some of these matters, Ms Rainier replies to the effect that she is unable to support herself without the assistance of her family.[3]
[3] See paras.20 – 21 of her Affidavit filed 6th October 2010. I also note that in para.17 of her Financial Statement, Ms Rainier confirms that her parents live with her and that her Father earns $1250 per week. However, in this regard, I note Nygh J’s comments in Murkin & Murkin (1980) FLC ¶90-806, where his Honour noted (at p.75,081) that “voluntary payments by a former husband or friends and relatives is not able to support herself. She has to be supported by others.”
In support of Ms Rainier’s application in relation to spousal maintenance, her mother, Ms B, filed an Affidavit on 19th November 2010, which annexed to it a schedule of expenses paid by Mr and Ms B on behalf of their daughter, Ms Rainier, together with supporting receipts.
Ms Rainier claims that Mr Rainier earns more than one million dollars per year.[4] His Financial Statement confirms that he earns a reasonable income but nowhere near the amount as submitted by Ms Rainier.
[4] See, for example, Ms Rainier’s Affidavit filed 6th October 2010, paras.12, 18-19.
Mr Rainier has confirmed that his work commitments are such that (a) he has significant flexibility so as to be able care for [X], and (b) his financial means are not insignificant.
It is not disputed that between separation in July 2010 and the end of October of that year, Mr Rainier was providing $300 per week by way of rental assistance to Ms Rainier, and that he had provided her with $15,000 for the purchase of a new car.[5]
[5] See Ms Rainier’s Affidavit filed 6th October 2010, paras.7 & 19.
In my view, the Court may reasonably infer from his previous financial assistance for Ms Rainier that Mr Rainier has the capacity to provide at least some financial assistance to his former wife and the Mother of their son, [X].
Legislative and jurisprudential principle
Section 72 of the Act prescribes the conditions that entitle a spouse to maintenance. That section provides:
(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).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
Upon the Court making what is usually described as a “threshold finding” according to the ‘criteria’ set out in s.72, then the Court has to consider whether, in the exercise of its discretion, an order should be made under s.74 of the Act. Section 74(1) states: “In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.”
In K v P, the Full Court (Coleman, Warnick & Thackray JJ) said (emphasis in original text):[6]
In our view, the concluding words of s.72(1) direct attention to each of the provisions of s.75(2) which the Court, in the exercise of the wide discretion conferred by s.74, considers relevant in determining whether or not a spouse is able to support himself or herself adequately.
[6] K v P (2008) 216 FLR 445 at p.451 [26].
Likewise, in the earlier decision of Mitchell & Mitchell,[7] the Full Court (Nicholson CJ, Fogarty and Jordan JJ) stated that the threshold to be overcome in s.72(1) is whether the applicant is unable to support herself adequately by reason of the matters set out in sub-paragraphs (a), (b) or (c) in s.72(1), but also having regard to any relevant matter referred to in s.75(2).
[7] Mitchell & Mitchell (1995) 19 Fam LR 44 at p.59.
Cases such as Mitchell & Mitchell confirm that, if the court makes an order for spousal maintenance, the level of the award should not be at a subsistence level, but one which is adequate in all of the circumstances, particularly having regard to s.75(2)(g).
It was submitted by Mr Rainier that the Court should have particular regard to the fact that Ms Rainier has the capacity, opportunity and general wherewithal to return to work in a well paid position in the public service (at [company omitted]).
The difficulty with such a submission is that it runs directly into s.75(2)(l), which requires the Court to consider “the need to protect a party who wishes to continue that party’s role as a parent.” To give practical effect to this subparagraph means that Ms Rainier should not be penalised by her decision to continue to take leave in order to be available to care for her young son.[8]
[8] See the comments of Mullane J in Nixon & Nixon (1992) FLC ¶92-308, at p.79,317: “It is the clear intention of the legislation that a parent who does have the alternative of paid work and childcare may instead choose to adopt the role of a full-time parent and depending on the circumstances may be found to be unable to adequately support himself [or herself] by reason of having the care of the children of the marriage.”
Summarily stated, having regard to the relevant considerations in s.75(2), I note the following:
·both parties are [still] young (Mr Rainier is 38; Ms Rainier is 30);
·apart from Ms Rainier’s significant period of hospitalisation to which I have referred, I am not aware of any health issues in relation to either party;
·subject to what is said shortly in relation to Ms Rainier’s employment, the financial resources of the parties considerably favour Mr Rainier;
·both parties have equal care of their young son [X];
·while there is little in the way of detailed evidence, the Court may infer that during the course of the relationship, a reasonably comfortable standard of living was able to be maintained;
·the duration of the relationship was approximately 4½ years;
·I have already noted that the requirement to consider the financial agreement is, at this stage, a matter awaiting determination. Accordingly, the Court’s consideration is necessarily somewhat incomplete.
Conclusion
Having regard to the legislative prescriptions to which I have referred, and the case-law also noted,[9] on the limited evidence that is available to the Court,[10] and allowing for the legitimacy of some of the questions raised by Mr Rainier, in my view, Ms Rainier has established her need for maintenance under s.72 of the Act.
[9] See also the helpful general discussion by Coleman J, sitting as the Full Court, in MS & PS (2006) FLC ¶93-268.
[10] I note that there was no cross-examination in the course of the brief hearing.
There can be no dispute that she has the care and control of the child of the marriage who has not attained the age of 18 years, albeit that she has the care and control of [X] on a shared care basis and, as I have already indicated, having regard to the precise terms of s.75(2)(l), she should not be penalised by her choice to be available to care for [X] as his Mother.
Having satisfied the threshold requirement under s.72 of the Act, it remains to consider the matters set out in s.75(2) to which I have referred, and the exercise of the Court’s discretion under s.74.
Based upon the evidence from the parties in their Financial Statements and their respective affidavits, I am also satisfied that Mr Rainier has the capacity to meet a modest award for spousal maintenance. In this regard, as I have already mentioned, the Court may take some notice of the fact that he has previously provided rental assistance to Ms Rainier and, in my view quite generously, has otherwise made further provision for her in relation to the purchase of a vehicle.
In the circumstances of this case it seems to me that a modest amount of spousal maintenance should be made. Precisely because (a) I apprehend that Ms Rainier intends to return to her former employment (indeed, once her current leave expires, there is no evidence to suggest that she will not return to work – subject to any final parenting orders), (b) there should not, in my view, be an ‘open-ended’ award, (c) there remains the ‘yet to be determined financial agreement issue’, and (d) the property side of the proceedings has yet to be resolved but, subject to the financial agreement aspect, resolution of the property matters should take place in the not too distant future, it should be for a limited time only. That award should be for $250 per week; this sum is to be paid up until 30th June 2011.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 18 February 2011
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