Richards and Richards

[2012] FamCA 927

FAMILY COURT OF AUSTRALIA

RICHARDS & RICHARDS [2012] FamCA 927

FAMILY LAW – variation of a spousal maintenance order.

APPLICANT: Mr Richards

RESPONDENT: Ms Richards

FILE NUMBER: BRC 1601 of 2011

DATE DELIVERED: 13 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 13 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Black

SOLICITOR FOR THE APPLICANT: Paul Curtis & Co

SOLICITOR FOR THE RESPONDENT: Mr Macpherson MacDonnells Law

Orders

1. The Order made by Federal Magistrate Spelleken on 7 June 2011 is varied by decreasing the amount that the husband is to pay the wife from $544 to the sum of $310 per week spousal maintenance. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Richards has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1601 of 2011

Mr Richards

Applicant

And

Ms Richards

Respondent

EX TEMPORANEOUS

REASONS FOR JUDGMENT

Introduction  

1. Before me is an application by the husband Mr Richards for the variation of a spousal maintenance order in favour of his former wife, Ms Richards, that was made on 7 June 2011 by Federal Magistrate Spelleken in the sum of $544 per week.  The wife has cross-applied for an increase in that maintenance order.  The husband’s application is not to discharge the order but to vary it downwards to a sum of $272 per week.  The wife seeks an order that it be increased, not reduced, to the sum of $621.89 per week.  Relevant also is the fact that that was an interim order pending finalisation of property settlement and parenting proceedings that were before the Court at the time Federal Magistrate Spelleken made her order.  In that regard it was only an interim order. The matter came before the Court and specifically before me for a trial earlier in May this year and I remain reserved, unfortunately, in respect of the decision although some extensive part of it has been written to this point in time. 

2. Section 83 of the Family Law Act gives the Court the power where there is in force an order with respect to the maintenance of a party to a marriage, to do what the parties are asking, that is, to increase or decrease any such amount ordered to be paid. Section 83(2) specifically says that the Court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied that since the order was made or last varied the circumstances of a person for whose benefit the order was made have so changed or the circumstances of the person liable to make payments under the order have so changed so as to justify the Court doing what the parties ask it to do.

3. In this case, there is no doubt that the circumstances have changed since the order was made.  More specifically, the wife has returned to some part time work in which she is working 25 hours per week and earning $30 per hour, some $750 which she is now able to contribute to her own support.  In short, I determine the matter by looking now to the needs of the mother, that is, her individual reasonable weekly expenditure requirements, her capacity to contribute towards those herself from her income, earning capacity and assets, and then, to the extent that there is a shortfall, I turn to the question as to what the husband’s income is and what his reasonable weekly expenditure requirements are and what he may therefore have to contribute. 

4. In short, for the reasons that came out during the course of the hearing, I determine that the wife has a shortfall of some $303 per week.  Mr Macpherson specifically submits that should increase because of the fact that I only allowed some $375 per week in respect of her accommodation where she is actually paying in excess of that, namely $750 per week.  However, as I indicated during the course of the hearing the mother pays $750 per week rent for a property in which she lives with the two children, the father pays $690 per week rent for a property that he lives in and has the children living with him five days a fortnight, but sometimes also has a student from overseas effectively boarding with him. I do not consider it reasonable in the circumstances to allow for the entire amount of rent when considering what their own individual personal reasonable expenditure requirements are and I have chosen a figure that was submitted to me by Ms Black as a reasonable figure, $375 per week, for each of them in respect to their expenditure needs.  That is what I took into account when arriving at the mother’s shortfall of $303. 

5. I then determined to consider what the husband’s capacity is.  I ultimately determined that the husband has a capacity of $654 per week, therefore he is able to meet that amount.  Mr Macpherson submitted to me that I should allow or add back in as income the car allowance of $380 per week that the husband said that he receives and that was not in his financial statement.  I take into account that he also has a lease payment in respect of a motor car that he requires for work of $572 per week to which he contributes that $380. 

6. I did not allow that $572 as a personal expenditure requirement previously but will set the $380 off against it.  Additionally, Mr Macpherson submitted I should take into account that he receives $205 per week for board or rent from the student, but on the evidence which I have accepted, he only has another 4 weeks of that, and it is $205.  It might increase his capacity, but as I said, I find that the wife’s shortfall is only $303 in any event.  That is the amount that I look to, to determine what should be paid in terms of spousal maintenance.

7. There was some argument made on behalf of the wife that because she is having to pay school fees, extracurricular activities such as ballet lessons and the like for the children that that increases her shortfall because she is drawing on her own income that she would otherwise have available to contribute towards her own needs, in order to meet the children’s.  As I said to Mr Macpherson during the course of argument, I do not consider that I can make a spousal maintenance order that is truly a child support order somehow disguised as spousal maintenance.  I do not consider the law permits me to do that.  So with respect, I do not accept the submission. 

8. At the end of the day, I am satisfied that it is appropriate in the circumstances of this case to vary the amount of the order that was made by Federal Magistrate Spelleken last year and I will round the figure up to the nearest unit of ten.

9. As from today’s date the Order made by Federal Magistrate Spelleken on 7 June 2011 is varied by decreasing the amount that the husband is to pay the wife from $544 to the sum of $310 per week spousal maintenance. 

10. In respect of the other matters, I do not intend to make any orders in respect of the issue of the Trust Fund.  At this point in time I have said enough during the course of the hearing to let Mr Richards know what my views are as a Judge where he stands in respect of that trust fund.  He indicated to me that he had no problem with his former wife being a co-trustee or joint trustee with him in respect of that fund and I can indicate to the parties that they can look forward to an order in my final property division orders that will appoint the mother, the wife, as a co-trustee of that trust in favour of the children.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 November 2012.

Associate:

Date:  23 November 2012.