RANKIN & RANKIN
[2018] FamCA 268
•27 April 2018
FAMILY COURT OF AUSTRALIA
| RANKIN & RANKIN | [2018] FamCA 268 |
| FAMILY LAW – CHILD SUPPORT – wife’s application for an order for departure from administrative assessment of child support and application for non-periodic child support remitted from Full Court for re-hearing – husband also seeks a departure from administrative assessment of child support – where the wife seeks the husband’s child support income be fixed at $245,000 per annum or that he pay $400 per child per week from 1 January 2016 – where the husband seeks to pay the wife $150 per child per week – departure order that the husband pay the wife $400 per child per week – where the wife seeks the husband pay arrears in a lump sum – no order made for the husband to pay arrears in a lump sum – where the children currently attend private schools – where the wife seeks that the husband pay for school fees and other related expenses – where the husband no longer seeks that the children attend private schools – where the husband does not have the capacity to pay non-periodic child support for school fees and other related expenses. FAMILY LAW – SPOUSAL MAINTENANCE – wife’s application remitted from Full Court for re-hearing – wife’s application opposed by the husband – where the wife seeks that as and from 1 January 2016 the husband pay to the wife lump sum spousal maintenance in the sum of $75,000 and in the alternative $500 per week – where the husband has no capacity to meet a capitalised spousal maintenance order or to pay a lump sum for retrospective periodic spousal maintenance from 1 January 2016 as sought by the wife – where the husband does not have the capacity to meet weekly spousal maintenance – no order for spousal maintenance. |
| Child Support (Assessment) Act 1989 (Cth), ss 116, 117, 124, 125(1) Family Law Act 1975 (Cth), ss 72, 74, 75(2) |
| Curnow & Curnow (unreported, FamCA, 28 April 1997) Jacks & Parker (2011) 248 FLR 9 |
| APPLICANT: | Ms Rankin |
| RESPONDENT: | Mr Rankin | |||
| FILE NUMBER: | DGC2859 | of | 2013 | |
| DATE DELIVERED: | 27 April 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 17, 18 & 19 October 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Richard Ingleby |
| SOLICITOR FOR THE APPLICANT: | Goldhirsch & Schnider |
| COUNSEL FOR THE RESPONDENT: | Miss Tulloch |
| SOLICITOR FOR THE RESPONDENT: | L. Y. Tonge & Co Lawyers |
Orders
IT IS ORDERED THAT:
Pursuant to s 117 of the Child Support (Assessment) Act1989 (Cth) there be a departure from the administrative assessment of child support payable by the husband to the wife with respect to the children, D born … 2003, E born … 2004 and F born … 2009 (“the children”) such that the rate of child support for the children shall be $400 per child per week such sum to be paid on a weekly basis, the first payment to be made within seven days of the date of this order.
The husband’s application for a departure order from the administrative assessment of periodic child support pursuant to s 117 of the Child Support (Assessment) Act (Cth) 1989 is dismissed.
The wife’s application for non-periodic child support pursuant to 124 of the Child Support (Assessment) Act (Cth) 1989 is dismissed.
The wife’s application for spousal maintenance is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rankin & Rankin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC2859/2013
| Ms Rankin |
Applicant
And
| Mr Rankin |
Respondent
REASONS FOR JUDGMENT
This is a matter remitted by the Full Court in Rankin & Rankin [2017] FamCAFC 29 on 2 March 2017 for rehearing of applications by the wife for spousal maintenance and departure from the administrative assessment of child support pursuant to s 117 and s 124 of the Child Support (Assessment ) Act 1989 (Cth) (“the Assessment Act”).
A capitalised spousal maintenance order and departure orders formed part of a suite of final property orders made by Johns J in this Court on 29 February 2016. Those orders were appealed by the respondent husband in this case.
The Full Court allowed the appeal in respect of the spousal maintenance and orders made under the Assessment Act. The Full Court set aside the order for spousal maintenance but remitted the application for spousal maintenance for rehearing noting that the parties’ circumstances were likely to have changed from when the matter was before Johns J.[1] The Full Court also set aside the orders made under the Assessment Act on the basis of non-compliance with s 125 of the Assessment Act and other grounds. The wife’s applications under the Assessment Act were also remitted for re-hearing.
[1] Rankin & Rankin [2017] FamCAFC 29, 81.
Accordingly the parties have filed new material. It is these applications by the wife and the husband’s Response which are the subject of this trial. The controversy here is concentrated on the husband’s financial capacity to meet the orders sought by the wife and the wife’s capacity for employment. The husband in his Response also seeks an order for departure from the administrative assessment of child support.
The parties have three children, D aged 15, E aged 13 and F aged 8. The children attend private single-sex schools. Pursuant to final parenting orders the children live with the wife and spend supervised weekend day time with the husband.
Johns J made an order for capitalised spousal maintenance of $65,000 which was discounted for payment in advance and found that the spousal maintenance order should be limited in time recognising that the wife anticipated that she would be able to resume employment within three years.[2]
[2] Rankin & Rankin [2016] FamCA 250, 178-180.
Regarding spousal maintenance, at paragraph 79 the Full Court found:
The primary judge erred in finding that the husband had the capacity to meet the order for spousal maintenance, because she failed to take into account the increased child support obligation, the expenses associated with the children’s school and the husband’s debts, including the debt owed to his then lawyers.
The Full Court noted at paragraph 72:
However, the primary judge also made an order that the husband’s child support was to be assessed on the basis that his income was $243,000 per annum, which, we were informed, would lead to a child support assessment of $894 per week.
The primary judge also ordered the husband to pay the children’s private school fees, extracurricular expenses, and costs for uniforms and associated equipment. The husband conceded that this order should be made, but neither party adduced any evidence as to the quantum of all the expenses. The husband did accept that the cost of the private school the two older children were attending was between $10,000 and $12,000 per annum per child, but it was unclear whether this concession related only to the fees or included all of the other expenses. In any event, the primary judge did not refer to, or take into account, the increased child support or the obligation to pay the school expenses when considering the ability of the husband to meet a recurring spousal maintenance order.
The final property orders were upheld on appeal but are relevant to my considerations here. For the sake of ease of comprehension I will refer to the applicant as the wife and the respondent as the husband.
A summary of the effect of the orders made by Johns J appears at paragraph 1 and 2 of the Full Court decision which is as follows:
…The effect of these orders was that there was to be a payment of $170,000 to the wife’s solicitors, with the balance of the parties’ net property divided between them so that the wife received 70 per cent and the husband 30 per cent. From his share the husband was to pay a number of debts as well as $65,000 to the wife as capitalised spousal maintenance. By agreement, a superannuation splitting order was made, splitting the parties’ superannuation equally between them.
Her Honour also made orders under the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”), the effect of which was that the husband’s child support was to be assessed on the basis that his income was $243,000 per annum. There was a further order that, in addition to this child support, the husband pay all the tuition fees, extracurricular expenses, and for uniforms and equipment associated with the schooling of the parties’ three children.
The Full Court at paragraph 11 said of Johns J’s orders and referring to the husband’s 30 per cent share of non-superannuation assets available for distribution totalling $803,611.41:
…The husband was ordered to pay the unpaid school fees ($36,872.96), the arrears of child support ($9,771.96) and lump sum spousal maintenance ($65,000) from his share.
Later in the reasons for judgment at paragraph 23 the Full Court said that Johns J had correctly removed these liabilities, which the husband conceded should be paid by him, from the table of assets and liabilities available for division between the parties.
Despite the concession about payment of the school fees made by the husband in the original trial, the husband maintains in this trial that he no longer has the financial capacity to pay the children’s school fees or the other payments sought by the wife.
The payments in dispute in this trial are for the period from 1 January 2016.
The parties followed the religious customs so the children were enrolled and attend private single-sex religious day schools. On the unchallenged evidence of the wife “the main reason for the family to move from Perth to Melbourne was” for the children “to continue their education at [religious] day schools”.[3]
[3] Affidavit of wife filed 11 October 2017, par 5.
Background
The background of the parties was set out by the Full Court at paragraphs 5-8 of the Reasons for Judgment as follows:
5. At the time of the hearing the wife was 46 years old. She obtained a … degree in [Country O] in 1994. In 1997 she commenced a … training program in [Country P], but did not complete because she migrated to Australia in November 1999. Her qualifications are not recognised in Australia. Apart from some brief periods of basic employment she has not worked since.
6. The husband was 48 years old at the time of the hearing. He migrated to Australia in 1991 and works as a [health professional].
7. The parties commenced cohabitation when the wife arrived in Australia. They married in … 2000. The wife asserted that they separated in July 2010 whilst the husband asserted that it was in July 2013. The primary judge did not resolve that dispute.
8. The parties had three children who were aged 12, 11 and six at the time of the hearing. They live with the wife.
The detailed background to the litigation is set out by Johns J in her Reasons for Judgment of 29 February 2016.
Final parenting orders were made by consent by Johns J on 18 May 2015. Those orders provided for the children to live with the mother. Order 3 provided:
That the father spend time with the children supervised at [GG] Contact Centre or such other location and/or service as may be agreed between the parties on days and times as nominated by the centre or agreed supervisor subject to the wishes of the child [D] so far as it relates to her time with her father.
On 26 October 2016 order 3 of the orders made 18 May 2015 was substituted by consent and provided:
1. That in substitution for paragraph 3 of the Orders made 18 May, 2015 the children [E] and [F] spend time with the husband as follows:-
(a)on alternate Saturdays commencing Saturday 29 October, 2016 for the purpose of attending the Shabbat morning service at [HH Street, Suburb II], the wife is to deliver the children at 9.55am and collect them at 1.15pm from the front gates, during which time the husband is to ensure that the children do not leave the … premises;
(b)on alternate Sundays commencing 13 November, 2016 for a period of up to 4 hours under the supervision of [Ms JJ] or an agreed suitably qualified alternate supervisor nominated by [Ms JJ] and at the husband’s expense, with changeover at the location in a) above or as otherwise agreed with [Ms JJ].
A further order was made that D will participate in the time above if she so wishes. A notation to the order provided:
The parties agree to review the ‘spend time’ and supervision arrangements upon the completion of 8 visits as specified in paragraph 1(b) above and with the benefit of a report from the supervisor.
The children are now aged 15, 13 and eight years. The husband has been administratively assessed to pay child support of $909.63 per week. Counsel for the husband referred to the most recent administrative assessment of child support payable by the husband as $1,145 per week which included a component for arrears. The husband owes arrears in child support of $39,693.26.
Counsel for the husband pointed out that any order made by the Court reducing the administrative assessment of child support would impact upon the quantum of the arrears.
It was unchallenged that the husband’s liabilities including his legal fees of $200,000 must be taken into account when considering his capacity to pay.
The applications
At the commencement of the trial the wife amended her Amended Initiating Application and the husband amended his Further Amended Response.
The wife in her Amended Initiating application amended in Court on 17 October 2017 sought the following:
·That as and from 1/1/2016 the husband pay to the wife lump sum spousal maintenance in the sum of $75,000 and in the alternative $500 per week;
·That as and from 1/1/2016 pursuant to section 117 of the Child Support (Assessment) Act 1989 the husband’s child support income be fixed at $245,000 per annum (without any admission that such figure is the amount of his income); or in the alternative that he pay $400 per week per child;
·That as and from 1/1/2016 pursuant to section 124 of the Child Support (Assessment) Act 1989, the husband pay to the wife tuition fees, uniform expenses, stationery and equipment expenses consequential to the children’s attendance at the current schools;
·That pursuant to section 125 of the Child Support (Assessment) Act 1989, the sums payable pursuant to the previous paragraph not be credited against any administrative assessment;
·That the husband pay all arrears of child support as at the date of the hearing.
At paragraph 85 of the Appeal the Full Court noted:
We have already referred to difficulties associated with the order for the payment of the school fees. Whilst each party criticised the other for not adducing evidence as to the costs of these expenses, we do not see how the primary judge could be satisfied of the ability of the husband to meet the orders in the absence of this evidence.
Counsel for the wife did not appear to grasp this issue again at the hearing before me and the evidence about the non-periodic child support was so confusing that it needed clarification during the closing submissions.
At the beginning of the trial counsel for the wife was asked to outline the quantum sought by the wife for “tuition fees, uniform expenses, stationery and equipment expenses consequential to the children’s attendance at the current schools” as outlined in the wife’s application. Counsel for the wife referred to the affidavit evidence of the wife and the transcript of the evidence before Johns J at page 75 on 18 May 2015, although no transcript was tendered by the wife’s counsel. He referred to the cross examination of the husband in the trial before Johns J where the husband accepted that the school fees for one child would be between $10,000 and $12,000. He quantified the school fees as $12,000 per year per child based on the evidence in the trial before Johns J.
However, as outlined earlier in these Reasons, the Full Court pointed to the lack of clarity surrounding the evidence about the school expenses and the school fees and said that the husband did accept that the cost of the private school the two older children were attending was between $10,000 and $12,000 per annum per child, but it was unclear whether this concession related only to the fees or included all of the other expenses.
When further clarification was sought and I asked counsel for the wife whether school fees were the same as tuition fees, counsel for the wife did not distinguish between the two and indicated that he would refer to the school fees as “tuition fees” for the purposes of his case. When asked, he agreed that the wife sought payment of tuition fees amounting to $36,000 per annum. However as outlined below this figure changed again.
Counsel for the wife also raised a further issue about whether the husband would qualify for relief from the school for a discount in the school fees. There was no evidence about this.
The affidavit evidence of the wife referred to “school uniform and shoes (up to $1000 for all children a year)” “school books (up to $700 annually for all children)”.
Counsel for the wife also clarified that the levies and security expenses were separate from the tuition fees and that the wife sought those as part of her claim for $400 per week per child in child support.
In closing submissions Counsel for the wife was further requested to clarify and quantify what was being sought concerning the non-periodic expenses. He was asked to specify the amount of school fees sought and he confirmed it was $16,562 per annum and relied on Exhibit 2.
This document is a statement of account of M School headed Term 4 Statement and dated 3 October 2017. The document contained the following information for the period 1 January 2017 until 2 October 2017:
·School fees discounted by 76 per cent for the three children amounting to $14,002
·Levies for the three children amounting to $2,235
·Security for the three children amounting to $325
·The total is $16,562
In relation to “uniform expenses, stationery and equipment expenses consequential to the children’s attendance at the current schools” as contained in the wife’s application, no submission was made in relation to the amount sought for these expenses. Presumably the wife relied on her affidavit referred to at the commencement of the trial, which is set out above.
The husband’s Further Amended Response as amended in Court on 17 October 2017 sought the following orders:
·From 1 January 2016 there be a departure from the administrative assessment of child support such that the husband pay to the wife the sum of $150 per week per child plus CPI (calculated on 1 July 2018 and annually thereafter) for the children D born in 2003, E born in 2004 and F born in 2009 until each of them attains the age of 18 years or completes Year 12 (whichever occurs last).
·The wife’s Further Amended Initiating Application be dismissed.
·The wife pay the husband’s costs.
·Such further and other orders as this Honourable Court deems appropriate.
Evidence
The parties did not ask me to read the Reasons for Judgment of Johns J and the matter was heard as a re-hearing based on the new evidence filed.
Evidence of the wife
The wife relied on the following documents:
·Amended Application for Final Orders filed 11 October 2017;
·Financial Statement filed 11 October 2017; and
·Affidavit of the wife filed 11 October 2017.
The wife deposed that her finances are extremely limited and her expenses are for a “bare subsistence” for her and the children. She deposed that she is reliant on various forms of “communal charitable assistance” for her children and herself to survive. She deposed that since May 2015 she has been living in crisis accommodation provided by KK Group.
She deposed that because the family are extremely religious it is necessary for them to live within walking distance of a place of worship particularly when driving a car is prohibited on religious holidays. She deposed that KK Group provide her with accommodation at a very low rental of $328 per week due to her very limited financial capacity. She deposed that she is reliant on assistance from communal charitable funds by receiving vouchers of $500 per month and $60 meat allowance per week to be spent at a butcher. She deposed to regularly using a community charity food pantry to supplement the food needs for herself and the family.
The wife deposed to the family moving from Perth to Melbourne because they wanted the children to continue their education at religious day schools. She deposed to the family following religious customs which meant that the children were enrolled by the husband in the two schools in Melbourne operated by religious institutions.
The wife deposed that since the separation in 2010 she continued paying “subject levy (up to $700 for each child), security levy (up to $520 for all children a year), school books (up to $700 annually for all children), school uniforms and shoes (up to $1000 for all children a year) and school camps and excursions (up to $500 a year for all children) and school photos”. The wife deposed that she is not in a financial position to pay anything towards the school fees for the tuition of the three children.
The wife deposed to being unable to afford to pay for any extra-curricular activities for the children. She deposed to incurring additional fuel consumption which had increased by almost 40 per cent compared to the previous year and higher car maintenance costs due to the different starting and finishing times for the children at school.
She deposed to paying the balance of orthodontic treatment for D from October 2013 until April 2015 by instalments of $250 a month.
The wife deposed that although she has a degree, her qualifications are not recognised in Australia. She deposed to attempting to obtain employment last year and having registered for positions such as a receptionist and in administration in offices and in shops.
She deposed to making enquiries about undertaking a Certificate III qualification so that she could gain employment. However she deposed that the course is a full-time six-month course and even subsidised fees of approximately $2,500 are beyond her financial capacity. She deposed that other courses which might be suitable are also full time and the fees are beyond her financial capacity. She deposed to unsuccessfully applying for various positions in clothing shops and registering with employment agencies. She deposed to sending her curriculum vitae to numerous potential employers but having no success in obtaining work, partly because of the long period since she has been in the workforce and because her qualifications and skills are not appropriate.
In cross-examination the wife explained that she obtained her degree in Country O and that she can obtain no credit for this in undertaking any Australian course. The wife also explained that her English is not to an appropriate standard so that she could qualify to work in Australia and potentially it might take up to six years to engage in the process. She also explained that she could not fund any study and that the shortest time frame to acquire any qualification would be at least four years. She also explained that because she is not an Australian citizen, but a Country P citizen, that she is not eligible for fee help. She explained that for this reason she has applied to undertake short courses only and that she last practised medicine 30 years ago.
The wife denied that she undertook any work as a dressmaker and explained that she did not have the equipment to do so and that she sometimes undertakes clothing alterations for close friends. She stated that she lacks the equipment to do a quality job and described undertaking only a “quick fix”.
The wife accepted that the husband paid the school fees until the end of 2013, however she maintained that since then she has paid all of the school fees. The wife maintained that she had never applied for a reduction in school fees but that she had spoken with the school and provided her financial documents having told them that she could not pay the full school fees. She was aware that the fees had been reduced by the school. She stated that the school decides the fees based on the parent’s documents and financial circumstances. The wife could not explain the documents from the school but maintained that she owed the school $490 for 2017.
However, despite the wife’s evidence which revealed some confusion about what was outstanding in terms of school fees, the wife deposed to having no liabilities in her Financial Statement.
Regarding the property settlement, the wife maintained that her solicitors hold $297,396 from the property settlement which is referred to in her Financial Statement. She stated that $150,000 is to be paid for her legal fees. Although the evidence was not entirely clear, it would appear that the wife will receive approximately $147,396 from the property settlement in addition to the superannuation.
Evidence of the husband
The husband relied on the following documents:
·Financial Statement filed 17 October 2017;
·Amended Response to Final Orders filed 17 October 2017;
·Affidavit of the husband filed 17 October 2017;
·Affidavit of Mr LL filed 17 October 2017;
·Affidavit of Dr Z filed 17 October 2017; and
·Affidavit of Dr MM filed 17 October 2017.
At the outset of the trial counsel for the husband highlighted that the husband’s current administrative child support assessment was $1,145 weekly which includes a component for arrears. Without the arrears the husband is assessed to pay child support of $909.63 per week. (Annexure YR-3 to the husband’s affidavit)
Counsel for the husband adduced further evidence in chief from the husband about some information which she had obtained from the school that morning which became Exhibit 5. This evidence ultimately appeared to be irrelevant and failed to clarify the financial arrangement for the parties with the school.
Exhibit 5 contained emails to Mr NN the School Fees Controller of M School from counsel for the husband seeking clarification about an amount of $21,000 from the husband’s ledger which appeared to be a liability of the husband. This liability was not referred to in the husband’s Financial Statement. The ledger from the school was produced and tendered by consent. Debtors Ledger K referred to a balance of $2,235 being owed by the husband on the last page which related to dates in 2016 and 2017.
The evidence of the husband was that he has never been asked by the school to pay anything and that he is not aware of any liability to the school and that the school does not communicate with him. Debtors Ledger K which was part of Exhibit 5 is also inconsistent with the email from the school which indicates that a total amount of $21,073 is owing by the husband.
Counsel for the husband appeared to suggest that this was a liability of the husband which should have been included as part of his Financial Statement, but I cannot find that the husband has any personal liability to the school based on the husband’s own evidence that there has been no demand to pay anything from the school. The confusing evidence as to quantum does not allow for any finding as to what is owed to the children’s schools.
In his affidavit filed 17 October 2017 the husband deposed that he lives in an apartment in Suburb C which is leased by his 83-year-old patient Mr BB who has significant medical issues. He deposed that it is a two-bedroom apartment with a large study and that in the past he paid rent to Mr BB for the use of the office there but stopped paying this in early 2016.
The husband deposed that he has an arrangement where Mr BB pays the rent and utilities for the apartment and the husband assists him putting drops in his eyes and ensuring that he takes his medication. The husband deposed that he does not pay Mr BB any rent or board but that he purchases almost all of the food for both of them. He deposed that they have a cleaner who is provided by KK Group and that they share the cooking.
The husband deposed that in December 2015 he signed a lease in the name of the husband’s company Rankin Pty Ltd (“the Company”) for a “2 bedroom apartment” in Suburb PP. He deposed that in early 2016 he set the apartment up as an after-hours consulting room and office which he commenced using in or around April 2016. He deposed that one of the bedrooms is set up as his office and the other is set up as an examination/consulting room. The husband deposed that all the services for the Suburb PP property are in the name of the Company.
At paragraph 16 of his affidavit the husband deposed that he worked at QQ Centre (“the Centre”) during the day and that he does not work there after 4 pm. He deposed that clients consult him after 4:00pm at the apartment in Suburb PP where he also uses the office to write his “reports for WorkCover and TAC after hours” and undertakes his “CPD requirements,” study and preparation for teaching commitments at the Centre after hours.
At paragraph 17 the husband deposed that he received all of his income earned both at the Centre and after hours at the apartment in Suburb PP via the Company of which he is the sole director and shareholder. He deposed that the income he receives is based upon the hours that he works and is paid to the Company net of a thirty per cent facility fee which is retained by the Centre.
Regarding his credit card liability he deposed that he pays most of his expenses both personal and business using his credit card and that he repays the balance owing on this card each month from the Business Transaction Account.
Concerning his hours of work, the husband deposed at paragraph 25 of his affidavit that in or around May or June 2016 upon the advice of his general practitioner, Dr Z, that he reduced his hours of work seeing patients from 40 hours per week to 24 hours per week. He deposed to being diagnosed with major depression and severe anxiety for which he is taking medication amongst other health issues including diabetes, asthma and high blood pressure.
The husband deposed that Dr Z recommended that he reduce his hours seeing patients following an episode of severe depression and anxiety.
In cross-examination about the after-hours business, the husband agreed that it was difficult to distinguish the work which was billed through the Centre and the after-hours work from the draft financial documents of the Company for the financial year ending 30 June 2017 but he maintained in re-examination that all of the work he performed outside the Centre is billed to the Centre. He maintained that he can identify the work from after-hours by different item numbers in documents from the office manager which were not in evidence.
In cross-examination, he maintained that he had undertaken after hours consultations at the Centre in Suburb PP for which he had an arrangement that the QQ Centre would take thirty per cent. He gave evidence that clients are billed through the QQ Centre. He stated that of the patients whom he saw at the after-hours centre that there would be approximately 20 people who had his direct telephone number and could ring him at any time and that he would use the software from QQ Centre remotely for these patients. He stated that this is the way it is structured and that Medicare is billed for after- hour consultations which attract a higher fee.
In cross-examination the husband maintained that he worked 23 hours per week at the Centre and that he might work one or two hours per week at the after- hours business depending on the number of calls.
At paragraph 20 of his affidavit the husband deposed to borrowing $20,000 in cash in or around December 2016 as he was travelling to Europe for a conference. He deposed that this was an interest-free loan and that he was required to pay $10,000 to the Child Support Agency as they were threatening him with a departure prohibition order and he needed to obtain some local currency for his trip. He deposed to four withdrawals in January and February 2017 of $5,000 from his Business Transaction Account to repay the money for the loan.
The husband deposed at paragraph 23 of his affidavit that for the 2017 financial year the funds available to him net of the facility fee, necessary business expenses (excluding legal fees), motor vehicle expenses and the expenses associated with the after-hours business were $167,410 (or $3,219 per week). He deposed to legal expenses of $81,928 being paid by the Company because they were incurred defending criminal proceedings and other proceedings which if he had been unsuccessful would have prevented him from practising medicine.
Evidence of Accountant Mr LL
The husband filed an affidavit from his accountant, Mr LL which was filed on 17 October 2017. The accountant confirmed the tax returns and financial statements for the Company in the husband’s annexures to his affidavit. At the time of affirming the affidavit, the accountant had not finalised the husband’s application to the Australian Tax Office for the repayment of the husband’s tax liabilities incurred personally and by the Company.
The accountant set out the arrangements that he subsequently made on behalf of the husband with the Australian Tax Office in an email dated 17 October 2017 which became Exhibit 6.
Exhibit 6 Tax liabilities
During the trial counsel for the husband tendered Exhibit 6, the email from the accountant outlining the terms of payment for the husband’s personal tax debt of $9,915.55 and the Company’s tax debt of $22,240.37. The email indicated that the accountant had arranged for payment on 17 October 2017 for both tax debts.
The Company tax debt is to be paid over a 24 month term at $980 per month with the first payment to commence on 17 November 2017 and the final payment due on 17 October 2019. There is interest over the term of $1,309.28 which is tax deductible for the Company.
The husband’s personal tax debt is to be paid to the ATO over a 24 month term at $415 per month with the first payment to commence on 17 November 2017 and the final payment due on 17 October 2019. There is no interest to be paid on this personal tax debt and the penalty of $420 was waived.
In cross-examination by telephone, Mr LL confirmed that he had been the husband’s accountant for the last 10 years. He agreed that in terms of the husband’s history of earnings that the figure for billings would have been over $800,000 some 10 years ago and about $600,000 in the financial years from 2011, 2012 and 2013. He agreed that the figure was approximately $561,192 for the 2014 financial year. When asked whether he was an independent expert witness or an advocate for the husband’s cause, he responded “both.”
The accountant agreed that it was his professional advice that the husband’s legal fees were a deductible expense for the Company because there was a nexus with his ability to work.
The husband’s medical evidence
The medical evidence adduced by the husband is relevant to his earning capacity which is the focus of the dispute. The husband’s case is that he has had to reduce his patient contact hours from 40 to 24 hours per week on medical advice. This is disputed by the wife.
Dr Z deposed:
[Mr Rankin] has been diagnosed with the following medical problems:
(a)Major depression and severe anxiety – for which he has been prescribed Lexapro and Mirtazipine;
(b)Diabetes – for which he has been prescribed Janumat;
(c)High blood pressure – for which he has been prescribed Atacand and Atenolol;
(d)Testosterone deficiency – for which he receives testosterone injections;
(e)Asthma – for which he has been prescribed Symbicort, an inhaler; and
(f)Colonic polyposis – which requires him to have a colonoscopy twice per year and polyps removed.
In or around 3 May 2016 I recommended that [Mr Rankin] reduce his hours of work as he had been working full time and I suggested that he reduce his hours of work to about half. [Mr Rankin] was suffering from a severe episode of anxiety and depression…
… Due to his ongoing health issues I do not foresee a time in the future when I would be likely to support an increase in his hours of work.
Dr MM deposed at paragraphs 3 to 6:
[Mr Rankin] has been diagnosed with major depression and severe anxiety – for which he has been prescribed Lexapro and Mirtazipine.
I understand that in or around May or June of 2016 Dr Z recommended that [Mr Rankin] reduce his hours of work by about half as he was working full time. I support that recommendation as [Mr Rankin] continues to suffer from severe anxiety and depression.
I last saw [Mr Rankin] about several months ago. His severe depression and anxiety remains of some concern to me.
Due to [Mr Rankin]’s ongoing health issues I do not foresee a time in the future when I would be likely to support an increase in his hours of work.
Dr Z general medical practitioner
In cross-examination Dr Z agreed that the husband reminded him in a telephone discussion about his reduction in working hours and that he was provided with an affidavit prepared by the husband which the doctor subsequently amended because he did not recall having any discussion about the reduction of the specific number of working hours such as 24 hours. He stated that he did discuss with the husband that the husband should reduce his working hours. In response to questions in cross-examination, it was his opinion that the husband did not constitute a threat to the community because of his depression and anxiety.
Dr Z’s notes were tendered in evidence as Exhibit B. When referred to his notes of 4 April 2016 (page 4) he stated that it was his view at the time that the husband was working too hard and he mentioned that very often to him in discussions but did not record this in his notes. He agreed that since 3 May 2016 there was no note relating to the husband’s working hours and that his notes referred to aging and infirm parents as a source of stress without any mention of work for more than 18 months. Dr Z agreed that the husband had not consulted him professionally as his general practitioner during 2017.
In re-examination Dr Z agreed that he knew the husband socially and had seen him a couple of times this year. The effect of his evidence was that he also saw the husband informally. He conceded that he wrote referrals for the husband to four different psychiatrists where he referred to the stress of the ill-health of the husband’s father and did not mention the husband’s working hours. Those letters were dated 3 May 2016 and were sent to four different psychiatrists.
Dr Z stated that the stress from the husband’s elderly parents was compounded by the litigation. When asked to comment about the husband’s current health he responded, “I’ve seen him a couple of times this year and diabetes and other issues mean that he shouldn’t work that many hours. It’s not safe to work that number of hours with metabolic syndrome. He is a walking time bomb if he works so hard”.
It was clear however that Dr Z had only seen the husband socially in 2017 and that the husband had not consulted Dr Z professionally throughout 2017.
Dr MM husband’s consultant psychiatrist
In cross-examination Dr MM conceded that he could not produce any notes. He also conceded that his affidavit was prepared by the husband and Dr Z and sent to him but that this was not his usual practice. He agreed that usually he would be responsible for preparing the content of a report however he maintained that the content of the affidavit represented his professional judgment. He conceded that the report was “particularly abbreviated” but maintained that not all reports are comprehensive. He agreed that the report did not indicate that he had diagnosed the husband with major depression and severe anxiety but stated that he had made a formal diagnosis of adjustment disorder and subsequently revised it to major depression in 2013 in a letter which he wrote to Dr Z.
He agreed that the husband’s depression and anxiety was managed by the prescribed medication. He conceded that he had seen the husband only once in 2017 and in 2016. He said that he would see him informally and talk about his wellbeing. When asked whether he had ever had a discussion with the husband about his hours of work, he responded “he has mentioned to me he has to work less hours due to his health”.
Counsel for the wife emphasised that the affidavits from the husband’s general practitioner Dr Z and from the husband’s consulting psychiatrist Dr MM were almost identical and had been prepared by the husband. Both witnesses had corrected the same spelling error for one of the medications referred to.
Child Support
The approach I have taken is to firstly determine the issue of child support before considering whether the husband has the capacity to pay the wife spousal maintenance (Masoud & Masoud (2016) FLC 93-689) if the threshold is met.
Legal Principles
Division 4 of Part 7 of the Assessment Act deals with orders for departure from administrative assessment in special circumstances (departure orders).
To establish jurisdiction the court must be satisfied that an order should be made in the special circumstances of the case under s 116(1)(b) of the Assessment Act where a carer entitled to child support is a party to an application pending in a court having jurisdiction under the Assessment Act and if the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support to consider whether an order should be made under the Division.
If persuaded of those matters, the Court exercising jurisdiction under the Assessment Act may permit the application to proceed (Babbit & Babbit (2011) 252 FLR 1).
In the circumstances of this case the parties agree that special circumstances exist and this proceeding arises from the original hearing where a carer entitled to child support was a party to an application pending in a court having jurisdiction under the Assessment Act. Accordingly I am satisfied that it would be in the interest of the liable parent and the carer entitled to child support to consider whether an order should be made under the Division.
In Babbit & Babbit (supra) at [22], Bryant CJ and Austin J said:
The Full Court of the Family Court in Gyselman and Gyselman (1992) FLC 92-279 at 79,064 set out the procedure to be followed when considering an application for departure from an administrative assessment of child support. That procedure requires a three-step process to be undertaken in compliance with s117. Section 117(1)(b) requires the court to be satisfied as to:
1.Whether one or more grounds of departure in s117(2) is established.
If so:
2.Whether it is “just and equitable” within the meaning of s117(4) to make a particular order.
3.Whether it is “otherwise proper” within the meaning of s 117(5) to make a particular order.
All three elements must be addressed. Furthermore, the Full Court said:
…Each of those grounds (in Section 117(2)) is prefaced by the words “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases. [It has been held] that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and the application of the particular grounds in Section 117(2) must be guided by that qualification.
Section 117(2) of the Assessment Act sets out the grounds for a departure order. The Court must be persuaded the applicant has established the existence of one of the following grounds of departure:
a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
i)The duty of the parent to maintain any other child or another person; or
ii)Special needs of any other child or another person that the parent has a duty to maintain; or
iii)Commitments of the parent necessary to enable the parent to support:
(A)Himself or herself; or
(B)Any other child or another person that the parent has a duty to maintain; or
iv)High costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
b)That, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
i)because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
ia)because of special needs of the child; or
ib)because of high child care costs in relation to the child; or
ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents
c)that in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
i)because of the income, earning capacity, property and financial resources of the child; or
ia)because of the income, property and financial resources of either parent; or
ib)because of the earning capacity of either parent; or
ii)because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
In considering whether it is “just and equitable” within the meaning of s 117(4) of the Assessment Act to make a particular order, the court is required to undertake the task of considering the matters set out in paragraphs (a) to (g) of that subsection. Some matters in sub-s (4) may overlap with matters in sub-s (2) and the facts of the case will determine the relevance or significance of the factors being considered.
Whether it is “otherwise proper” within the meaning of s 117(5) to make a particular order will depend upon similar considerations. In Hallinan & Witynski (1999) FLC 98-009 the Full Court said that the reasons for answering the two questions posed by s 117(1)(b)(ii) of the Assessment Act need not be elaborate but that a necessary part of the exercise of discretion imposed on the court, is to consider at least broadly the matters referred to in s 117(4) and 117(5) of the Assessment Act respectively and then make a finding as to satisfaction or otherwise in relation to the relevant matter.
Earning capacity
Section 117(7B) of the Assessment Act is relevant to s 117(4)(da) of the Assessment Act determining the earning capacity of each parent who is a party to the proceeding. Section 117(7B) of the Assessment Act is relevant here because it specifically refers to one or more of the matters on which the court must be satisfied if the court in its discretion determines that the parent’s earning capacity is greater than is reflected in his or her income.
Section 117(7B)(a) of the Assessment Act includes as one or more of the matters of which the court must be satisfied where the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupational industry in which the parent is employed or otherwise engaged. It also includes where the parent has changed his or her working pattern.
However ss 117(7B)(b) and (c) of the Assessment Act require the court to be satisfied that the parent’s decision to reduce the number of hours, or working pattern, is not justified on the basis of, amongst other things, the parent’s state of health and the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support.
Section 117(7B) of the Assessment Act is relevant to the wife’s case that the husband has reduced the number of patient contact hours per week from the number of contact hours he was previously working. This section is also relevant to the husband’s case that because of his state of health he has been required to reduce his working hours.
Non-periodic child support
Division 5 of Part 7 of the Assessment Act provides for jurisdiction to make an order for non-periodic child support under s 124 of the Assessment Act. It is a discretionary exercise. Section 124(1)(b) of the Assessment Act provides that the court may make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts if the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper.
In determining the application the court must have regard to the factors outlined under s 124(2) of the Assessment Act. These include having regard to the administrative assessment in force, any departure determinations and whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or whether the circumstances of the carer are such that taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.
In determining whether it would be just and equitable to make an order, the court must have regard to the matters mentioned in sub-ss 117(4), (6), (7), (7A) and (8) of the Assessment Act. The court must consider the parties and the child for whom the order is sought.
Under s 125(1) of the Assessment Act, if the court makes an order under s 124 the court must state in the order whether the annual rate of child support payable by the liable parent under any relevant administrative assessment is to be reduced.
Concerning the payment of private school fees the Full Court in Mee and Ferguson (1986) FLC 91-716 (“Mee and Ferguson”) said at 75,200:
The legal principles to be applied in cases where there is a dispute between parents as to the financial responsibility for a child attending a private school have been considered by this Court in a number of cases, although with shades of opinions and variation of emphasis……
The dispute in this case really centres around the husband's continued capacity to contribute to these fees. Consequently it is unnecessary to consider the principles to be applied in detail.
Where the non-custodian has agreed to the child attending such a school that person is liable to contribute to the fees involved so long as and to the extent that he or she has a reasonable financial capacity to continue to do so. Where the non-custodian has not agreed to the child attending such a school he or she is not liable to contribute to those expenses unless there are reasons relating to the child's welfare which dictate attendance at that school rather than at a non-private school. Then the non-custodian, as an aspect of the welfare and maintenance of the child, is required to contribute to the extent that he or she has a reasonable financial capacity to do so. However, the mere fact that the non-custodian can afford to pay the fees, or indeed if he or she is a wealthy person, is not in itself a reason for imposing that liability.
(citations omitted)
In the decision of Jacks & Parker (2011) 248 FLR 9 the Full Court said at paragraph 232:
While Mee and Ferguson predated the introduction of the child support scheme, the remarks made by the Full Court in that matter nevertheless retain some persuasive value in drawing attention to the fact that it is appropriate for a court to consider whether a parent has a “reasonable financial capacity” to contribute to school fees even in those cases where they had once consented to the child attending a private school.
Whilst it is argued that the husband previously consented to the children attending the private schools and in fact the parties appear to have relocated to Melbourne for the purpose of the children attending the religious private schools, the issue remains whether the husband has the reasonable financial capacity to contribute to the school fees.
Submissions
In opening his case counsel for the wife submitted that it was inconceivable that the husband used the apartment in which it is alleged that he lives as the site of an after-hours business having regard to the advertisement of the QQ Centre website referring to a 27 hour per week business. Counsel for the wife referred to the Company’s tax return claiming rent of $18,200 for the apartment in Suburb PP as a business address. However I note that the husband has not claimed any rent or mortgage payments as part of his personal expenditure in his Financial Statement.
Counsel for the wife also submitted that if the husband does have an after-hours business that it is totally inconsistent with his case that he is required to reduce his working hours from 40 to 24 hours a week.
Counsel for the wife raised the financial capacity of the husband to travel to Europe for a conference. The husband through the Company claimed expenses of $13,592 for travel and accommodation (Annexure YR-1 of his affidavit). It was submitted that the husband can attend conferences in Melbourne but that he chooses to travel to Europe.
Counsel for the wife relied upon the objects of the Assessment Act under s 4 of the Assessment Act referring to a proper level of financial support from parents. He referred to the fact that the jurisdiction under s 116(1) of the Assessment Act is agreed between the parties. He submitted that the husband’s earning capacity is “not what he conjures up with his accountant under the company structure”. He submitted that the husband acknowledged that it is completely up to him as to what income he receives from the Company.
He relied upon paragraph 5 of the wife’s affidavit which referred to the wife surviving on food vouchers and emphasised that this evidence was not challenged. He submitted that the main reason for the parties moving to Melbourne was to continue the education of the children at religious single sex schools and that this evidence was not challenged by the husband. Counsel submitted that the “manner to be expected” test referring to s 117(2)(b)(iii) of the Assessment Act was relevant.
Concerning the husband’s income, counsel for the wife maintained that in re-examination the husband agreed that he receives the income from the Company which provides his services to QQ Centre. Counsel relied on the evidence given by the husband as highlighted above in cross-examination in this trial, that he is the only person who is responsible for the distribution of income from the Company and that his income is his “gross billings minus 30 per cent”.
Counsel for the wife objected to the evidence of the husband’s accountant because he gave evidence that he was “both” expert and advocate. Counsel for the wife submitted that the husband’s gross billings pre-separation were in the range of $600,000 per annum which would amount to an average weekly income of $8,400 taking into account the 30 per cent administrative fee which is paid to the Centre. The income statement for the Company for the year ended 30 June 2017 records gross billings of $342,331 for 2017 and $475,573 for 2016.
Counsel for the wife called into question the husband’s claim of a liability of $200,000 for legal fees, submitting that there was no evidence of any demand for payment. In any event Counsel for the wife argued that priority should be given to obligations to pay child support. He relied on the Company’s financial statement at Annexure YR-1 of his affidavit which indicated that the husband had prioritised payment of legal expenses of $81,928 in 2017 and $109,761 in 2016 over child support.
Counsel for the wife did not challenge the diagnosis relied upon by the husband for anxiety and depression but submitted that the medical evidence indicated that the husband’s depression was controlled by medication and that the medical evidence relied upon by the husband for the proposition that his medical condition requires him to limit his work hours, was not convincing because the affidavits had been prepared by the husband rather than the medical practitioners.
Counsel for the husband submitted that a proper level of child support under the Assessment Act must be determined according to capacity. Counsel for the husband relied on s 4(2)(d) of the Assessment Act referring to the objects of the Assessment Act that children share in changes of standard of living of both their parents whether or not they are living with both or either of them.
Counsel for the husband submitted that the husband’s net position is substantially negative and represents a significant departure from early 2015 when Johns J heard the case and since separation. Counsel for the husband conceded that there is power under s 124 of the Assessment Act to make an order for the payment of school fees “above and beyond an assessment of periodic child support”. Counsel for the husband submitted that there is no dispute that the children were enrolled in 2008 at school by the husband but he no longer has capacity to continue to contribute to school fees. Counsel for the husband maintained that it is a matter for the wife if she elects to continue the enrolment of the children in the current school because she has sole parental responsibility and can make decisions about school. Counsel for the husband submitted that the husband can no longer afford that.
Counsel for the husband submitted that the way the school assesses school fees is a “mystery”. She submitted that Exhibit 2 is a statement of account but that there is no evidence as to why it is discounted by 76 per cent. She submitted that there is nothing to compel the wife to apply for a discount and this would lead to further litigation given the history of the parties. She submitted that the wife should be responsible for the payments because she has $297,000 in a bank account to apply towards school fees. Counsel for the husband acknowledged the wife’s evidence that she owes legal fees, although the amount was unclear, but submitted that the wife has the capacity to pay the school fees for which she should be responsible.
In Curnow v Curnow[4], the Full Court of this Court held that even where the threshold has been met under s 72 of the Act, an obligation to pay spousal maintenance only arises if the party from whom the payment is sought is reasonably able to maintain the other party. I must consider the husband’s income and then his necessary living expenses such as the compulsory and unavoidable commitments of taxation, superannuation, Medibank levy, non-discretionary expenses and reasonable living expenses. After deducting those expenses, I must consider then whether the husband has the capacity to pay spousal maintenance.
[4] Curnow & Curnow (unreported, Family Court of Australia, Ellis, Kay and Moore JJ, 28 April 1997)
Under s 75(3) of the Act, I must disregard any entitlement of the wife to an income tested pension, allowance or benefit, when considering her financial circumstances.
In Mitchell and Mitchell (1995) FLC 92-601, the Full Court of the Family Court of Australia comprising Nicholson CJ, Fogarty and Jordan JJ stated in reference to spousal maintenance applications that the threshold question of whether the applicant “is unable to support himself/herself adequately” is not to be determined by any fixed or absolute standard but having regard to the matters in s 75(2) of the Act and particularly sub-ss (a), (b) or (c) of that section. In that case the Full Court pointed out at 81,995 – 81,996 that:
The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”. Where the line is to be drawn will depend upon the circumstances of individual cases.
Relevant s 75(2) matters
The matters to be taken into account under s 75(2) of the Act are the only matters which the Court shall take into account in exercising jurisdiction under s 74 of the Act.
The wife is aged 48 and the husband is aged 50.
I have outlined earlier the financial circumstances of both parties and the nature of the final property orders that were made. The wife owes her lawyers $150,000 and the husband owes his lawyers $200,000. The husband is to pay the periodic child support by way of the departure order together with the arrears as assessed and into the future with the youngest child aged eight years.
The wife is in good health. The extent to which the husband’s earning capacity is limited by the state of his health was in issue but I have found as outlined above that the husband’s state of health requires that he reduce his working hours by about half. This affects his earning capacity
One of the relevant s 75(2) matters is the need to protect a party who wishes to continue that party’s role as a parent and a standard of living that in all the circumstances is reasonable. The wife in this case has the fulltime care of the three children of the marriage. The children spend supervised time with the father. The wife is continuing her role as parent and this affects her employment opportunities in that her employment must allow for flexibility so that she can care for the needs of the children. The potential cost of childcare where there are three children is also a factor if the wife were employed.
The wife has contributed to the husband’s earning capacity in her role as homemaker and primary carer of the children. Under s 75(2)(k) of the Act, I have considered the duration of the marriage, which was at least ten years, and the extent to which it has affected the earning capacity of the wife because she was the children’s primary carer during the marriage.
The wife is unemployed and her capacity for paid employment is limited because of her parenting role and the time that she has spent out of the paid workforce. I accept her evidence that she has been seeking paid employment since the youngest child turned seven. There was no issue taken with the fact that her qualifications are not recognised in Australia.
The wife’s needs were not challenged. She has expenses for herself of only $127 per week in her average weekly expenses in Part N of her Financial Statement, but she has rent of $328 weekly and registration expenses which are not included.
The wife deposed to the cost of rent in the area where she lives near the children’s school as between $800 to$1000 per week. However the expenses to which she has deposed are expenses she has incurred for a bare subsistence to survive in circumstances where she is dependent upon communal charitable assistance for food and living in crisis accommodation subsidised by KK Group.
I have found that the wife is unable to support herself adequately and that she has reasonable needs.
This case turns on the husband’s capacity to meet the wife’s needs. Having regard to the liabilities of the husband outlined earlier, the husband has no capacity to meet a capitalised spousal maintenance order or to pay a lump sum for retrospective periodic spousal maintenance from 1 January 2016 as sought by the wife.
I have found that after paying the amount of $1,200 per week by way of the departure order and the arrears assessed by the Child Support Agency that the husband will have a weekly surplus of approximately $299.63.
The departure order will see the wife’s weekly deficit of $207 changed to a small surplus of $83. The husband has no personal savings and the wife will receive $147,396 by way of property settlement after payment of her legal fees.
In these circumstances although the wife has met the threshold for spousal maintenance I am not satisfied that the husband has the capacity to meet any order for spousal maintenance. He has a buffer of $299.63 per week after paying all of his commitments and child support but he has no personal savings and a liability to pay his legal fees which may be paid through the Company on the evidence of his accountant. Accordingly it is not reasonable or proper to exercise my discretion to make an order for the husband to pay the wife spousal maintenance when she will be in receipt of funds of approximately $147,396.
I propose to refuse the wife’s application for lump sum and periodic spousal maintenance.
I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 27 April 2018.
Associate:
Date: 27 April 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Appeal
-
Remedies
0
2
2