Rainsford and Rainsford
[2010] FMCAfam 231
•25 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAINSFORD & RAINSFORD | [2010] FMCAfam 231 |
| FAMILY LAW – Interim spousal maintenance – injunctions. |
| Family Law Act 1975 (Cth), ss.72, 74, 75, 77 Federal Magistrates Court Rules 2001, (Cth) r.21.02 |
| Ashton and Ashton (1982) FLC 91-285 Bevan & Bevan (1995) FLC 92-600 Clauson (1995) FLC 92-595 Sieling and Sieling (1979) FLC 90-627 Blueseas Investments v Mitchell & McGillivray (1999) FLC 92-856 Dean and Dean (1977) FLC 90-213 Rowe and Rowe (1980) FLC 90-895 |
| Applicant: | MRS RAINSFORD |
| Respondent: | MR RAINSFORD |
| File Number: | HBC90 of 2010 |
| Judgment of: | Roberts FM |
| Hearing date: | 24 February 2010 |
| Date of Last Submission: | 24 February 2010 |
| Delivered at: | Hobart |
| Delivered on: | 25 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Agh |
| Solicitors for the Applicant: | Butler McIntyre & Butler |
| Counsel for the Respondent: | Mr Trezise |
| Solicitors for the Respondent: | Dobson Mitchell & Allport |
ORDERS
That until further Order MR RAINSFORD (“the Husband”) is to pay to MRS RAINSFORD (“the Wife”) by way of interim spousal maintenance the sum of $400 per week with such to be payable monthly on the 1st day of each calendar month in the sum of $1,733.33 and the first such payment is due and payable on 1 March 2010.
That until further Order the Husband is to continue to pay private health insurance for the Wife at the level of cover that existed prior to the parties’ separation.
That the Husband is to provide to the Wife an accounting of all sales, income, expenses and liabilities that have occurred or accrued since the parties’ separation.
That pursuant to Rule 10.05 of the Federal Magistrates Court Rules the parties confer with a Registrar of this Court on a date to be fixed and make a genuine effort to reach agreement in relation to the issues between them.
THE COURT NOTES:
That the matter be returned to Federal Magistrate Baker’s docket.
That any Applications for costs in relation to today’s Orders can be heard by me by telephone and such can be arranged by contacting my Associate.
IT IS NOTED that publication of this judgment under the pseudonym Rainsford & Rainsford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 90 of 2010
| MRS RAINSFORD |
Applicant
And
| MR RAINSFORD |
Respondent
SETTLED REASONS FOR JUDGMENT
The applicant is Ms Rainsford (“the wife”) and the respondent is Mr Rainsford (“the husband”).
The wife is seeking interim spousal maintenance and injunctive orders. I will refer to the specifics of the orders sought by her below in these Reasons. The matter was dealt with on the papers alone, so I cannot determine any conflicts of fact in the affidavit material.
The wife’s application for final orders seeks orders for division of property.
Background
The wife is aged 49 and the husband is aged 46. Cohabitation between them commenced in 1986 or 1987; their versions differ about the year of cohabitation, but nothing turns upon that. They married [in] 1989 and separated [in] 2009.
The parties live on a farming property, or more accurately farming properties, but are currently living in different houses on those farming properties. At the time of cohabitation the wife had two children from a previous relationship and both of those children, according to her evidence, have adopted the husband’s family name. They are a son now aged 28 and a daughter aged 26.
The parties have two sons from their relationship. Both of those sons, aged 20 and 17, are employed on the farming properties.
Counsel for the wife addressed me first in relation to spouse maintenance and then in relation to the injunctions sought by her client and I propose to deal with the orders sought in that manner.
Spouse maintenance – relevant law
In my view, the wife is not seeking urgent spousal maintenance under section 77 of the Family Law Act 1975 (“the Act”). She is seeking interim spousal maintenance under section 74.
In the 1982 decision of Ashton and Ashton,[1] Nygh J said:
An application for interim maintenance is basically different from an application for urgent maintenance. An application under s 77 is heard at a time when all the evidence is not yet to hand. It may have to be made ex parte or may have to be made on such evidence as the husband is able to supply in the short period before the matter is set down for hearing. An application for interim maintenance is a creature whose exact nature has not been adequately defined but, as I understand it, differs only from an application for permanent maintenance in that the order which is sought is an order until further order....
In such circumstances it may be appropriate to make an application for interim maintenance but an application for interim maintenance must not be confused with an application for urgent maintenance and the making of an application for interim maintenance cannot be used merely to re-label what in effect is an application for urgent maintenance. In this case I think that is what the wife is seeking to do.
On an application for interim maintenance, the normal procedures relating to applications for maintenance under s 74 must be observed and an application for maintenance can only be heard after each party has had the opportunity to adduce evidence, that is to say, the normal procedure for the filing of affidavits by both parties and the filing of financial statements must be observed.
[1] (1982) FLC 91-285, commencing at page 77,613.
In this particular case, both parties have filed affidavits and financial statements and so it seems to me that it was better to deal with the matter on an interim basis rather than an urgent basis under section 77.
The law in relation to spousal maintenance is governed primarily by sections 72, 74 and 75 of the Act. The inter-relationship of those sections has been the subject of much discussion in many cases, but it seems clear from Bevan & Bevan[2] that to make an award of maintenance requires the following:
a)a threshold finding under section 72;
b)consideration of sections 74 and 75(2);
c)no fettering principle that a pre-separation standard of living must be automatically awarded where the Respondent’s means permit; and
d)discretion exercised in accordance with the provisions of section 74, with “reasonableness in the circumstances” as the guiding principle.
[2] (1995) FLC 92-600
Section 72 of the Act sets out what has often been described as “the threshold test”. That section reads as follows:
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 sub-section 75(2).
Pursuant to section 74 of the Act the Court has power to make “such order as it considers proper for the provision of maintenance”.
Discussion
In essence, the wife sought two orders for interim spousal maintenance.
The first was to be found at Order No. 3 in her application, whereby she sought:
That pursuant to Section 77 of the Family Law Act 1975 the Husband pay spousal maintenance to the Wife in the sum of $1,000.00 per week, or such sum as the Court may order, until such time that orders are made in regard to a property settlement.
I have already stated my view that section 77 is not the appropriate section because the wife is clearly seeking an interim order for maintenance. That is clear from the words “until such time that orders are made in regard to a property settlement”. In saying that she is not seeking “urgent maintenance”, however, I am merely referring to the technical provisions of section 77. I have absolutely no doubt that she thinks the matter is urgent.
Through her counsel the wife reduced her claim to $780 per week, being expenses totalling $840 per week as set out below, less an amount of $60 per week for private health insurance which the husband has indicated he will continue to pay. Her expenses as listed at the end of her financial statement are:
Food
$250
Household supplies
$50
House repairs
$20
Heating Fuel
$30
Motor vehicle maintenance
$20
Clothing and shoes
$30
Medical, dental & optical
$100
Entertainment/hobbies
$50
Holidays
$20
Chemist/pharmaceutical
$20
Repairs – furnishings and appliances
$10
Books and magazines
$10
Gifts
$20
Hairdressing, toiletries
$30
Other - Animals; private health
$180
Total
$840
Despite the arguments put forward by Mr Tresize, I have little hesitation in concluding that the wife meets the threshold test in section 72. She is aged 49 and has not worked off the farm for 23 years. Although the husband does not accept that she has no capacity for employment, I am of the view that I can take judicial notice of the fact that unemployment rates in Tasmania are higher than the national average and of the poor employment opportunities in rural areas in particular. I also note that I have no evidence that the wife has any saleable qualifications, so it is my view that she is essentially unskilled and fits the requirements of section 75(2)(c).
I now turn to consider the wife’s needs.
In my view, I was not helped greatly by the wife’s evidence. As I have said, she is claiming $780 per week but that includes expenses that I consider to be excessive. For example, she claims that she needs $250 per week for food for one person. Although she complains in her affidavit that her children do not pay her board, it is my view that that is an issue between her and her sons. Both are employed and one is an adult. If the wife chooses to subsidise their costs, that is a matter for her and should not be the subject of some form of compensation by way of spousal maintenance.
Another example of the wife’s excessive “expenditure” is the $100 per week that she claims she needs for medical, dental and optical expenses. The evidence in relation to that is in paragraph 36 of her affidavit. That paragraph is extremely confusing and lacking in some basic details, such as how frequently she now needs to see her doctors. She gives evidence of the frequency four years ago but not of the frequency now.
I also note that the wife’s bank statements were tendered and they appear to show only $235 paid to [C] Health Care in a period of 15 weeks. If those are the only payments that she made towards medical expenses, then that is less than $16 per week. I have no evidence of whether she paid cash on other occasions when she may have been to the doctor, although she made some reasonably large cash withdrawals over the period. The state of the evidence is therefore unsatisfactory.
I have concluded that the best way of assessing the wife’s actual expenditure and needs is to examine the bank statements that were tendered on her behalf and work out what she needs from that examination of them.
On 30 October 2009 she deposited $10,000 into her account. That was the amount that she filled in on a blank cheque given to her by the husband.
According to her bank statements, she had all but spent that $10,000 by 15 February 2010. However, that expenditure of $10,000 includes some items that I consider to be unreasonable and therefore should not be seen as being reflective of her reasonable needs. The most glaring of those is that she paid $2,500 for a third horse, which was part of a withdrawal of $3,000 on 24 November 2009. In addition, she appears to have spent $800 on 5 January 2010 at Horseland, and from what she has written on the side of her statement, I make the assumption that that was expenditure for saddles. Consequently, it seems to me that $3,300 should be deducted from the total of $10,000 and that her reasonable expenditure over that period is reduced to $6,700. As I have already indicated, that is over a period of 15 weeks from 25 October 2009 to 15 February 2010. That equates to $446 per week.
In my view, an examination of the wife’s bank statements shows some of her other expenditure to be excessive. For example:
·On 22 December 2009 she spent $80.50 at McDonald’s. That would buy an awful lot of “Big Macs”, but the wife gives no explanation about it.
·On 25 November 2009, 3 December 2009, 4 January 2010, 1 February 2010 and 11 February 2010 the wife appears to have paid expenses which I conclude from her writing on those statements included one or both of the parties’ sons at the [B] Hotel. Indeed, some of that writing on the statements suggests that on at least three of those occasions she was repaid something by those young men.
I therefore conclude that allowing for unexpected contingencies, a reasonable level of interim periodic maintenance is $400 per week, which is in addition to the sum of $50 per week that she periodically collects from a female tenant on the farming property. Consequently, it is my view that a proper amount for periodic maintenance is $400 per week.
I now turn to consider the capacity of the husband to pay that amount, which does not require lengthy consideration because there is little doubt that the husband has the capacity to pay $400 per week. He did not argue that he does not have the capacity to pay. He has $83,000 available in a bank account with the Commonwealth Bank, so if those funds are available, it appears that he can pay $400 a week for approximately four years. Hopefully, this matter will not keep going for as long as that.
I also infer that the husband does not feel that he is “strapped for cash” if he could afford to give the wife signed blank cheques knowing that she could fill in the amount, even up to $10,000.
As I said yesterday, the wife’s claim to be dominated and controlled financially by the husband is a bit bizarre when the evidence is that he gave her blank cheques for her to fill in the amount. However, that has no bearing on the level of maintenance that should now be paid.
The wife also sought an order:
That the Husband transfer to the Wife the sum of $18,000.00.
Her counsel stated that the wife was seeking that in addition to periodic maintenance and that it was to be for “living expenses”.
That claim appeared to be entirely based upon the fact that the husband can afford it, which misses the point that firstly a reasonable need for that money must be established.
In Clauson the Full Court said:[3]
The other aspect which it is important to identify in this case is that the power to make a maintenance order is to be found in s. 74. As s. 80(1) makes clear, the Court, in exercising that power, can do so in a number of ways, including by a periodic order or a lump sum order. Periodic maintenance should be considered before lump sum maintenance. The central power is to order maintenance; that power may be exercised in different ways.
A claim for lump sum maintenance is not a claim to the exercise of a separate head of power; it is a claim for maintenance which may be satisfied by a periodic order or by a lump sum order; see Davidson and Davidson (No 2) (1994) FLC 92-469.This type of lump sum maintenance is not a separate entity. It is the capitalizing over a period of time of what is considered to be appropriate periodic maintenance for that period, usually with a discount because of immediate payment. The power to capitalize periodic spousal maintenance is a power to be exercised cautiously for reasons referred to by his Honour in the passage cited above: see, for example, Vaughan and Vaughan (1981) FLC 91-066 at 76,508; O'Brien and O'Brien (1983) FLC 91-316; Spano and Spano (1979) FLC 90-707; Anast v Anastopoulos, supra; Vartikian and Vartikian (No. 2) (1984) FLC 91-587 at 79,739-40. In particular, uncertainty about future events explains this approach, and capitalization of maintenance would rarely be justified where there was no genuine concern about the capacity and preparedness of the payer to comply regularly with a periodic order.
[3] (1995) FLC 92-595 at 81,908
It is clear to me that if periodic maintenance will meet a person’s needs and can be afforded, then such an order is to be preferred. As the wife does not establish a need for a lump sum over and above a periodic payment, I decline to make such an order.
Consequently, it is unnecessary for me to consider the evidence about the placing of funds in the bank account of one of the parties’ sons. In my view that is irrelevant to a spouse maintenance claim. It may be relevant in relation to final property matters but I make no finding about that.
Injunctive orders – relevant law
In Sieling and Sieling (1979) FLC 90-627 Evatt C.J. and Marshall S.J.: at 78264
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction that is necessary to achieve the protection of the applicant's interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.
On an application for an interim/interlocutory injunction the Court must be satisfied that there is a serious issue to be tried and the balance of convenience supports the making of the order. In Blueseas Investments v Mitchell & McGillivray, Nicholson CJ, Lindenmayer and O'Ryan JJ said:[4]
There is no doubt that in proceedings for interlocutory injunctions the Court, before making an order, is required to find that there is a serious issue to be tried and that the balance of convenience supports the making of an order.
[4] (1999) FLC 92-856 at paragraph 56
It is clear that, as in the case of all injunctive orders, an applicant must demonstrate that an order for sole occupancy is necessary. In Dean and Dean,[5] Wood J said:
Having regard to the wide power contained in sec. 114(1) and the fact that an injunction once granted can continue indefinitely, and impose substantial hardship upon the party enjoined by it, a party who seeks sole occupancy of the matrimonial home should, in my view, demonstrate that a proper case exists for such an order, and that it is a necessary order having regard to the needs, both physical and emotional, of that party and any children for whom that party may be responsible.[6]
[5] (1977) FLC 90-213
[6] At page 76,097
However, such an order need only be reasonable in the circumstances, in that it is not necessary for an applicant to show that an intolerable or impossible situation exists. In Rowe and Rowe,[7] Pawley SJ said:
In applying the test, it seems to me that the court ought not resort to such words as ‘intolerable’ or ‘impossible’ but must simply be satisfied that it would not be reasonable to expect both parties to continue to remain on the premises together... It is an objective test and, of course, each case must be determined on its own particular facts.
[7] (1980) FLC 90-895 at p 75,644
Discussion
In this matter the wife seeks an order in the following terms:
That the wife be entitled to sole possession of the former matrimonial home situate at Property [L].
The onus is upon the wife to establish that she is in need of such an order.
The evidence is that the husband has been living in another home since [omitted] 2009. Although it is not in the sworn evidence, it is agreed that on one recent occasion the husband came to the former matrimonial home where the wife is living, with valuers in order have the property valued for the purposes of these proceedings.
The wife has the protection of a Police Family Violence Order (“PFVO”), issued [in] 2009, and by that PFVO the husband:
·must not stalk the wife;
·must not directly or indirectly threaten, harass, abuse or assault the wife;
·must surrender his firearms; and
·must not apply for a licence or permit under the Firearms Act.
As mentioned, the wife has had the benefit of that PFVO since
[omitted] 2009 and there is no evidence before me that the husband has breached it. I am therefore of the view that the wife has not satisfied her onus in relation to an order for exclusive occupation of the home. She already has that in relation to the husband at least.
I comment that the fact that her sons are living in the former matrimonial home and do not pay board to the wife is not a matter that comes within the scope of the Family Law Act 1975, but is something between her and her sons.
The wife also sought an order as follows:
That the Wife be permitted to have sole use of the paddock adjacent to the former matrimonial home for the sole occupation of her animals on condition that the Husband or a person at the Husband’s direction provide appropriate notice to the Wife that the Husband or a person at the Husband’s direction will be running sheep through the said paddock and on such appropriate notification, the Wife will unlock the gate and the Husband or any other person at his direction run the said animals through the said paddock and whilst doing so the Husband be restrained from abusing, threatening or harassing the Wife in whatever nature and kind and will use his best endeavours to ensure that no other person at his direction who is present not abuse, threaten or harass the Wife.
The only evidence that the wife offers in support of such an order is to be found in paragraph 30 of her affidavit. In that paragraph she said:
Unfortunately [Y], as well as being abusive and threatening to me, has abused one of my horses by running it ragged to such an extent that I telephoned the police. It is for that reason that I am seeking sole occupation of the paddock next to my property to which I will put a lock on the gate and agree that upon the Respondent’s request or at his direction advise that they are ready to run sheep through the paddock, I will unlock the gate, however, I do not want anyone to further abuse me.
[Y] is the parties’ adult son, and it is my view that the problems in the wife’s relationship with [Y] are not matters that can be dealt with under the Family Law Act 1975.
As I said yesterday, an allegation of animal cruelty cannot be the subject of a remedy under the Family Law Act 1975. I note that the wife’s tendered Exhibit “W4” indicates that she intended to take up the matter of running the horse ragged with the RSPCA.
Further, the wife does not provide any evidence of how big the paddock is, how often it is used, etc.. I also note that the order sought by her would require the husband to contact her to open gates and that does not really sit well with the PFVO, because it would mean that the parties would come into unnecessary contact and that could cause unnecessary tensions between them.
The order, as sought by the wife, is also clumsy and unwieldy because:
·it seeks to restrain the husband and make him responsible for the action of others; and
·it fails to address the issue of whether the wife would unlock gates at times when the husband is not present and a farm employee might want to move sheep.
In my view, the wife has not discharged the onus upon her to convince me that an order in relation to the paddock is necessary and I decline to make such an order.
The wife also sought an order in the following terms:
That the Husband be restrained from dealing with, encumbering or disposing of any assets to the said property including [Company omitted] Pty Ltd or any other entities in which the Husband has an interest in. (sic)
There is no evidence that the husband is engaged in, or contemplating any of the activities suggested in such an order, other than the selling of some sheep, which I infer was in the normal course of the farming business. That is because it is only mentioned by the wife in relation to his possible sources of income.
I note that the assets of the husband are said by him to be worth in excess of eight million dollars and the liabilities are said to be less than one million dollars. I therefore surmise that sheep sales are unlikely to threaten the wife’s claim in any way.
I further note that the husband is willing to account to the wife in relation to “all sales, income and creditors since the date of separation”. As I noted during submissions, he has an obligation to make full and frank disclosure of all financial matters in any event.
I decline to make an order of the type sought by the wife at paragraph 54 above because there is no evidence to support the need for any such order.
The wife is not pursuing Order No. 6 in her interim application.
Order No. 7 sought by the wife is:
That the Husband be restrained from discussing with or in the hearing of the children about any matters concerning the property settlement. (sic)
The wife has clearly fallen out with her 26 year old daughter and with her 20 year old son. However, they are both adults and I do not see any need to restrain the husband from discussing matters with them. Clearly what happens to the farm will affect them. The wife’s daughter also lives in a house on the farm.
At paragraph 23 of her affidavit the wife said:
Things have been slowly getting worse, especially over the last 4 - 5 years and it has to do with my daughter [X] and the fact that the Respondent is spending so much time at her place which is only 150 metres from my home and he has started spending nights there as well as during the day.
The husband said:
I don’t stay with [X] as Mrs Rainsford wants to suggest.
I cannot make a finding about the truth of either version, but I note that the husband and [X] are both adults and freedom of association is a right that we generally take for granted in Australia. In my view, to restrict conversation between adults is a significant infringement of a person’s liberty that is just not warranted by the evidence in this matter. Consequently I decline to make any order in relation to what the husband can discuss with either [X] or [Y].
In relation to [Z], I note that he is employed on the farm and he will be an adult in five months’ time. In addition, the wife says: “[Z] says nothing” and further, there is no application before the Court for any parenting orders in relation to [Z]. Consequently, I can see no reason to make an order in relation to what may or may not be discussed between [Z] and his father.
In short, I decline to make an order of the type sought by the wife at paragraph 60 above.
I note that the husband says:
I simply want us to conclude our relationship promptly and with some dignity.
I cannot comment on the veracity of that statement, but this matter will be much more easily resolved if each of the parties can treat the other with dignity and respect. Unfortunately, I cannot force anybody to act in a reasonable manner; that must come from the individuals themselves.
The orders
Firstly, there will be an interim order that the husband pay spousal maintenance in the sum of $400 per week, but I will add that it is to be paid monthly on the first day of each calendar month in the sum of $1,733.33. I arrived at that monthly figure by simply multiplying 400 by 52 and dividing the result by 12. The first payment will be due on 1 March 2010, because I note from the wife’s bank statements that she is almost broke and I therefore infer that she is in need of some maintenance soon.
The next order will be similar, but not identical to that which the parties agreed upon in relation to the private health insurance. The wife referred to “full private health insurance”, but private health insurance plans are many and varied. It seemed more appropriate to me to tie it to the level of cover that existed prior to the parties’ separation because the wife uses the word “continue” and I assume that that is what she means. Consequently, the order will refer to the level of cover that existed prior to the parties’ separation.
There will also be another order that was agreed, although I have again varied the wording slightly. The husband is to provide the wife with an accounting of all sales, income, expenses and liabilities that have occurred or accrued since the parties’ separation.
The next step is that these parties should attend a conciliation conference. They are in the process of getting properties valued so I will make my usual order for a conciliation conference and place this matter back into Federal Magistrate Baker’s docket.
Rule 21.02 of the Federal Magistrates Court Rules 2001 provides that an application for an order for costs may be made within 28 days. Any application for costs can be heard by me by telephone.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 25/2/2010
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