Richter and Maguire
[2008] FMCAfam 214
•14 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RICHTER & MAGUIRE | [2008] FMCAfam 214 |
| FAMILY LAW – Interim and urgent spousal maintenance claim – wife seeks sum from husband to pay removal expenses from former matrimonial home and other expenses – wife in paid part-time employment – husband currently unemployed – whether reasonable or proper for award to be made. |
| Family Law Act 1975, ss.72, 74, 75(2), 77 |
| Redman v Redman (1987) FLC 91-805 Chapman & Chapman (1979) FLC 90-671 Bevan & Bevan (1995) FLC 92-600 |
| Applicant: | MS RICHTER |
| Respondent: | MR MAGUIRE |
| File Number: | ADC 189 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 11 March 2008 |
| Date of Last Submission: | 11 March 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 14 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Croydon |
| Solicitors for the Applicant: | Croydons |
| Counsel for the Respondent: | Mr Whittle |
| Solicitors for the Respondent: | Cardone & Associates |
ORDERS
The wife’s application for interim spousal maintenance filed 26 February 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Richter & Maguire is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 189 of 2008
| MS RICHTER |
Applicant
And
| MR MAGUIRE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for urgent spousal maintenance pursuant to section 77 of the Family Law Act 1975.
The applicant in the proceedings for spousal maintenance is Ms Richter “the wife”, the respondent is Mr Maguire “the husband”.
The parties married in Hamburg, Germany in 2003, after having met in South Australia in late 2001. At that stage, the wife was on a year’s leave from a [occupation omitted] position she held in Germany. She was travelling around Australia.
The wife stayed with the husband at his home in [L] for various periods in 2002. In May 2002, she returned to Germany but revisited Australia in October 2002 for a holiday. Before her return to Germany the husband proposed marriage.
The husband himself visited Germany at Christmas of 2002 and returned in July 2003 for the marriage. The parties began to live together, at the husband’s [L] property, in February of 2004. The parties separated, under the same roof, on 4 May 2007.
The husband commenced proceedings, in this court, on 17 January 2008. At that time he sought orders in respect of the division of marital property. Essentially, he wishes the wife to leave the former family home at [L], which is registered in his sole name and that the parties each retain the items of property currently in their respective possession.
The wife responded to this application on 26 February 2008. She seeks, on a final basis, that the husband pay to her an unspecified sum of money and that there be a split, in her favour, from the husband’s superannuation entitlements. Again, the extent of the superannuation split is unspecified.
On an interim basis, she seeks the payment to her of a lump sum of spousal maintenance and the payment of $250.00 per week, again by way of spousal maintenance, once she has left the former matrimonial home.
The proceedings first came before the court on 25 February 2008.
At that stage, I referred the parties to the earliest available conciliation conference, which has been appointed for 7 May 2008. At this stage, counsel for the wife indicated that her client wished to proceed with her application for spousal maintenance on an urgent basis.
It is the wife’s position that it is untenable for her and the husband to occupy the same property. The house concerned apparently has two wings, which are each occupied by the parties respectively. However, it is necessary for them to share some common rooms, particularly those which contain the cooking and washing facilities. The wife asserts that the husband has installed surveillance cameras in respect of these common areas, something which she finds intolerable.
As such, it is her position that she has no alternative but to find other rented accommodation for herself, in the [L] area. It is her case that she does not have adequate financial resources to meet the full expense of her relocation, particularly the payment of her removal expenses.
As such, she seeks a financial contribution from the husband. She has moderated her position somewhat from her response.
Currently, she seeks payment of the sum of $2,025.00, in a lump sum, for urgent spousal maintenance, together with the sum of $1,360.00, which is the sum required for her removal expenses. Although she is prepared to consider a lesser sum if the husband can obtain a lower quote. The wife also seeks an order requiring the husband to keep her motor vehicle comprehensively insured and provide her with private health insurance.
It is the husband’s position that, as he has recently lost his employment, it would not be reasonable for him to be compelled to pay these various sums. In addition, he asserts that the wife is in paid employment, albeit on a part-time basis.
As such, it is his position that the wife has adequate financial resources to support herself, pending the final resolution of the parties’ competing property applications and it would be neither reasonable nor proper for an award of spousal maintenance to be made.
These reasons for judgment are directed to resolving this issue between the parties. Due to the urgency of the situation, the issue is to be determined on the basis of the various documents filed by the parties, without any cross examination or additional oral evidence.
The documents relied upon
The wife relies on the following documents:
i)two affidavits of herself filed on 26 February and 11 March 2008;
ii)a statement of her financial circumstances filed 26 February 2008
The husband relies on the following documents:
i)two affidavits of himself filed on 17 January and 11 March 2008 respectively; and
ii)a statement of his financial circumstances filed 17 January 2008
The legal principles applicable
Section 77 of the Family Law Act reads as follows:
“Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.”
An application for interim maintenance does not involve as extensive an inquiry as an application for final spousal maintenance orders.
As such, the evidence required does not have to be as extensive and, as the order concerned is to be for a specific or finite period of time, the court should approach such applications with a greater degree of flexibility than it would ordinarily apply to final applications.[1]
[1] See Redman v Redman (1987) FLC 91-805 at 76,081
Applications pursuant to section 77 have specific characteristics concerning them. They are intended to deal with urgent situations. As they apply to defined periods of time, they are in the nature of stop-gap orders. However, the applicant concerned does not have to establish that he or she is on “the bread line”. Rather the appropriate quantum of such an order must depend on the particular circumstances of the case and the financial history and background of the parties concerned.[2]
[2] See Chapman & Chapman (1979) FLC 90-671 at 78,569
The distinction between an urgent maintenance order and an interim one is a fine one. Urgent applications can be made orally, when the circumstances dictate. Ordinarily it is preferable to make an interim order, rather than an urgent one. More evidence is usually available, when an interim order is made.
In this particular case, I had extensive evidence before me. Each of the parties’ affidavit material was thoroughly and professionally prepared. Accordingly, although couched in terms of an urgent application, the wife’s application was more akin to an interim application for spousal maintenance, although it is only intended to remain in place until the conciliation conference has been conducted.
Pursuant to s.74 of the Family Law Act 1975, the court may make such order as it considers “proper” for the provision of maintenance to the wife in accordance with the provisions of Part VIII of the Act.
In particular, s.72 deals with the right of a spouse to maintenance and reads as follows:
“(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).”
Pursuant to s.75(3) of the Act, the court is directed to disregard any entitlement of a party to the proceedings to an income tested pension, allowance or benefit. Accordingly, the fact that the wife is receiving a disability pension is not a relevant consideration in this matter.
The Full Court of the Family Court in Bevan & Bevan[3] determined that the approach to be taken in respect of applications for spousal maintenance involved a four step process as follows:
·a threshold finding under s.72;
·consideration of s.74 and s.75(2);
·no fettering principle that a pre-separation standard of living must automatically be awarded where the respondent’s means permit;
·discretion exercised in accordance with the provisions of s.74 with “reasonableness in the circumstances” as the guiding principle.
[3] Bevan & Bevan (1995) FLC 92-600 at 81,981-2
The wife’s case
The wife is currently working 2.5 days (23 hours) per week at the [workplace omitted]. She discloses an income of $658.00 per week gross ($34,216.00 per annum).
Her hourly rate has recently been increased by around about $1.00. Accordingly she will be earning around $680.00 gross per week shortly. She also receives a petrol allowance of $20.00 per week.
The wife has taken some care tabulating her weekly recurrent expenses. They are as follows:
Tax
$92.00
Credit card (minimum payment
$15.00
Food
$80.00
Household supplies
$10.00
Telephone
$7.00
Petrol
$70.00
Car maintenance
$23.00
Fares/car parking
$2.00
Clothing and shoes
$20.00
Medical expenses
$41.00
Entertainment
$10.00
Holidays
$30.00
Education expenses
$13.00
Chemist
$10.00
Gardening
$5.00
Books
$15.00
Gifts
$10.00
Hairdressing
$20.00
Health insurance (Germany)[4]
$10.00
Total
$483.00
[4] The wife is a German national by birth. There is a possibility that she may return to live in Germany at some time in the future. In order to maintain her membership in the German national health system she must pay this weekly sum, otherwise she will be unable to receive subsidised health care, if she returns to live in Germany.
Accordingly, in round terms, the wife has a surplus of income over expenditure of around $217.00 per week. I do not quibble with any of the expenses, which she has specified. I do not think that it can be said that she leads an extravagant life. However, when subjected to some level of financial vicissitudes, it would seem to me likely that she could trim at least some of these expenses. In this regard I refer to the moneys she has allocated towards holidays, gardening, books and gifts.
Whilst the parties share the former matrimonial home, the husband is paying all the outgoings in respect of the property, particularly electricity, rates and water. It is the wife’s position that her financial circumstances have prevented her leaving the property up until this stage.
Regrettably, the parties do not currently enjoy a good relationship with one another. As previously indicated, the wife takes exception to the fact that the husband has installed surveillance cameras, where she washes her dishes and clothes. She has formally asked the husband’s solicitor to remove these cameras. Mr Whittle, counsel for the husband has indicated that his client will undertake to remove these cameras. However, at the date of the hearing they remained in place.
In any event, it now seems to be the wife’s position that, regardless of the cameras, she feels that her emotional state is such that she must quit the [L] property. Her general medical practitioner has diagnosed her as suffering a stress related illness, since the parties’ marital breakdown. The doctor concerned, Dr H, has advised the wife “strongly, on medical grounds to find alternative accommodation” for herself.
It is also Dr Hamilton’s view that the wife should not attempt to work more hours at the present time. However, regardless of this advice, the wife deposes that she has inquired as to the possibility of further work for herself at the [workplace omitted]. She believes it is likely that she will obtain a further half day of work per week, most likely commencing from 1 June 2008.
The wife believes that it will cost her around $190.00 per week to rent accommodation for herself in the [L] area. She has approached the South Australian Housing Trust, who have approved the payment to her of the moneys required for a tenancy bond and two weeks rent in advance, up to a sum of $380.00.
The wife owns a property in Germany, which is rented. The wife does not apparently receive any income from this property. In Australia she has some items of household property of modest value. She has some superannuation.
Most importantly, in the context of this case, she has access to savings of $4,055.91. She estimates her legal costs at present at somewhere around $5,000.00. Obviously, her exposure to legal fees has the potential to increase greatly, if the matter proceeds to trial.
The wife has in her possession a Daewoo motor vehicle, which is registered in the husband’s name. She is concerned about its insurance and seeks orders that would compel the husband to keep it comprehensively insured.
In addition, the wife does not have private health insurance. Given her current fragility of health, it is her position that this is an essential item for her. She applies for orders requiring the husband to maintain private health insurance for her. She estimates this cost at $35.00 per week.
The wife is concerned that, when she moves, she will not have access to a washing machine. Another aspect of her claim is that the payment of a lump sum of spousal maintenance will enable her to purchase a washing machine.
Finally, the wife seeks some moneys from the husband to enable her to remove her chattels from the former matrimonial home. She has obtained a quotation from a firm of removalists, who quote a sum of $1,360.00 to remove her possessions. This includes the packing of her property into cartons and removal to an address in the [L] area. However, if the firm concerned only supplies cartons, into which the wife herself packs her property, the fee concerned would be $770.00.
The husband’s case
The husband is 63 years of age. Accordingly, he is around nine years older than the wife who was born in 1955. Until recently, the husband was employed as a [omitted]. Earlier, he had been employed by [omitted].
His contract with [omitted] expired on 27 February 2008. The husband acknowledges that he will look for other work. However, it is his position that he suffers from some back problems and has arthritis in his knees and wrist, which preclude him from some physical tasks, particularly lifting or sitting and standing for prolonged periods of time. He supplies a certificate from his treating chiropractor in support of his contention in this regard.
The husband has a number of fruit trees at the [L] property. However, it is his position that, due to the prolonged drought, these trees are unlikely to produce any marketable fruit. Accordingly, it is the husband’s position that his recurrent income is currently nil, apart from a modest amount of $39.00, which he receives from share dividends and interest on his bank accounts.
The husband has not prepared as detailed an account of his recurrent weekly expenses as the wife. He has a credit card, which requires a minimum payment of $51.00 per week. In addition, he pays vehicle registration fees in respect of four vehicles, including the wife’s Daewoo. These expenses amount to $35.00 per week. Otherwise, he estimates his other general expenditure at around $446.00 per week.
Although this latter figure is not broken down into its component parts, in all the circumstances, it does not seem to be an unreasonable figure. Neither party accuses the other of leading a profligate or indulgent lifestyle. Both seem to live within their respective incomes, which are modest. Whilst at [workplace omitted], the husband was earning $839.00 per week gross ($43,628.00 per annum).
The husband is puzzled as to why the wife receives no income from her German property. This is an issue, which I am unable to resolve, in the context of these proceedings. From his perspective, although it might not be the optimal situation for either party, there is no impediment to the wife remaining in the [L] property, particularly given his undertaking to remove the surveillance cameras, which he contends have been installed purely for security purposes.
It is also the husband’s position that his current circumstances compel him to live off accumulated capital. From the wife’s point of view, this is the most significant aspect of the case. The husband concedes that he has savings and shares worth around $31,000.00. When he completed his statement of financial circumstances, the sum stood at around $37,000.00. In the intervening period, the husband has purchased a pump for his property.
Otherwise, the husband’s most significant assets are the former matrimonial home at [L] ($447,500.00) and various motor vehicles and a boat ($26,000.00).
The former matrimonial property is unencumbered. It is common ground that the husband brought this property into the marriage.
The husband has also accumulated superannuation to a value of around $80,000.00. Accordingly, it is the husband’s position that, although he has more liquid assets than the wife, he cannot be said to be in a secure financial position, particularly whilst his income is so limited.
Conclusions
The marriage between the parties produced no children. Accordingly, the wife has no responsibility to financially support any relevant child. It is also clear that the wife has a capacity to earn income for herself. She is currently employed, albeit on a part-time basis.
The main thrust of the wife’s case is that her current state of health precludes her from seeking full-time employment and, in any event, given the urgency of her situation, she needs immediate funds to reaccommodate herself. In addition, she points to section 75(2)(g) and argues that what she seeks will provide her with a standard of living that in all the circumstances of the case is reasonable.
The first task for the court is to establish whether the wife has crossed the threshold provided by section 72(1) of the Act. This requires an analysis of the husband’s capacity to pay the amount of spousal maintenance sought and secondly a consideration of the wife’s capacity and available resources to support herself.
The wife concedes that the husband currently has no capacity to pay maintenance to her from his recurrent income. Accordingly, she seeks payment from the husband’s accumulated capital.
In this case, I do not think that it can be said that the wife is bereft of a capacity to support herself. She has a modest income, which exceeds her recurrent expenses and gives her some surplus. This surplus would provide for her rent but not for the payment of her utilities. In addition, the wife has some acknowledged capacity to extend the hours of her employment in June of this year.
This is not a case where it can be said that the husband is not fully utilising his income earning capacity. He had a contract of employment for a limited period of time, which has come to an end. He is 63 years of age. He has some health difficulties, which preclude him from physical work. At present he has no income from which he could pay the spousal maintenance sought.
The only source of the urgent lump sum maintenance, sought by the wife, is the husband’s savings. The marriage between the parties was a comparatively brief one. The husband brought into the marriage the parties most significant asset – the former matrimonial home.
In the scheme of things, the husband’s savings and share portfolio must be considered modest in value. In all the circumstances of this case, I do not think that the wife has crossed the necessary threshold that it is reasonable for the husband to pay the spousal maintenance award, which she seeks, particularly given she has a regular income and the husband does not.
In addition, in all the circumstances of this case, I do not think it would be reasonable for such an award to be made. The wife is not automatically entitled to her pre-separation standard of living. Unfortunately the end of the parties’ marriage inaugurates a period of financial austerity for both parties. The husband has very limited capacity to meet the award sought and the wife has other avenues to deal with some aspects of her claim.
The wife seeks her removal expenses, which include the packing up of her property. If she packs the items herself, the cost is considerably reduced. The husband has offered the wife the use of a washing machine. The husband contends that the wife has never had private health insurance, up to this stage and accordingly he does not believe that it is reasonable that he should take it out now on her behalf.
The wife is critical of the husband for advising her of the cessation of his employment only recently and after her application for spousal maintenance had been fixed for hearing. This may be so, but the fact remains that the husband has currently no income and no concrete prospects of returning to paid employment.
Although I can understand why the wife would want her removal expenses paid and the provision to her of private health insurance, I am not persuaded that it would be reasonable or proper that the husband provide these expenses in all the circumstances of this case.
The sad fact of this case is that neither the husband nor the wife are in a secure financial position. Inevitably, their respective financial positions have deteriorated with the end of the marital relationship between them. It is trite but true none the less that two households cannot live as cheaply as one. Necessarily, the wife’s decision to leave the former matrimonial home, understandable as it is, must result in a significant deterioration of her financial position.
For all these reasons, I have come to the conclusion that the wife’s application for spousal maintenance must be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 14 March 2008