Ronalds and Ronalds

[2007] FamCA 765

FAMILY COURT OF AUSTRALIA

RONALDS & RONALDS [2007] FamCA 765

FAMILY LAW - SPOUSAL MAINTENANCE - Interim - Establishment of need

Family Law Act 1975 (Cth) - s 72, s 74, s 75(2)

APPLICANT: Mrs Ronalds

RESPONDENT: Mr Ronalds

FILE NUMBER: SYF 4172 of 2006

DATE DELIVERED: 6 June 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 6 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Lethbridge, SC

SOLICITOR FOR THE APPLICANT: McDonell Milne Toltz, Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr M Kearney

SOLICITOR FOR THE RESPONDENT: Paltos & Co, Solicitors

Orders

1. That the wife's Application in a Case filed on 24 April 2007 is dismissed.

2. That all costs be reserved.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judicial Registrar W P Johnston delivered on 6 June 2007 will for all publication and reporting purposes be referred to as “Ronalds”

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4172  of 2006

Mrs Ronalds

Applicant

And

Mr Ronalds

Respondent

REASONS FOR JUDGMENT

Introduction and Application

1. This is an application by Mrs Ronalds to whom for convenience I shall refer as “the wife”, for an order to the effect that Mr Ronalds, to whom for convenience I shall refer to as “the husband”, pay to her by way of interim maintenance, the sum of $2000 per week.  That application is opposed by the husband who in turn seeks an order that the application be dismissed.

Background

1. The brief background matters are that the husband was born in November 1953.  The wife was born in November 1955.  The parties commenced cohabitating in 1979.  They married in April 1985.  They separated in March 2006.  They lived separately at the former matrimonial home at a Sydney suburb until the husband vacated the home in early April 2006. 

2. There is one child of the marriage, T, who was born in November 1987 and who, on my calculation, is 19 years of age.  T is a full-time university student, boarding at a University college during semester.  He is spending time with his mother outside those times and also some time with his father.

3. I note that the husband is a [professional].  I also note that I have never had the pleasure of meeting either the husband or the wife.

4. Until the husband left the former matrimonial home he paid the wife $450 per week for what might be described broadly as housekeeping and general expenditure.  He also made various credit cards available for the wife's use. 

5. Since separation the husband has paid his family's private health insurance premiums and probably the wife's NRMA membership fee.  It is conceded by the husband that he has capacity to pay in accordance with a proper order. 

6. For the purposes of these proceedings I am satisfied that the wife does not have a capacity to be able to work in paid employment.  She has not worked in paid employment since before the birth of the parties' son.  Her qualifications are in the arts.  Before the child's birth the wife had taught various art subjects.  She has undertaken other courses.  She says that she is trying to establish a career as a freelancer and also that she has lost her profile as an artist.  She says that she has suffered from chronic fatigue syndrome and various other medical conditions to which she refers in her material, including depression.

7. I do not need to go into much detail in respect of the parties' financial circumstances because of the overall view that I take about the matter. 

8. The wife's income is $550 per week, comprising of interest from bank accounts and receipt of a modest dividend of approximately $40 per week. 

9. So far as the wife's expenditure is concerned, she says that she requires an amount, which I calculate from her material, of approximately $2106 per week.  On that basis her shortfall weekly would be $1556. 

10. The husband's income is something in excess of $6750 per week.  It is clear that he has a surplus of income compared with his expenditure as set out in his financial statement. 

11. The relevant legislation is contained in part eight of the Family Law Act 1975 and particularly sections 72, 74 and 75(2).  Sub-section 72(1) provides to the effect that 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 for one of the specified reasons.

12. Those reasons include by reason of having the care and control of a child of the marriage who has not attained the age of 18 years, by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason having regard to any relevant matter referred to in s 75(2) of the Act.

13. The starting point, or threshold matter as it is referred to frequently, is that the wife has to establish a need for maintenance.  As indicated above, there is no question about the husband's capacity to pay maintenance.  The problem in the wife's case, in my view, as set out in the submission by learned counsel for the husband, is that the wife is unable to establish a need for spouse maintenance.  She is unable to establish a need for the reason that she is in the fortunate position of being signatory to an account with the AMP in which, it is conceded on her behalf, there is a credit balance of $397 500. 

14. There is a very strong submission by learned senior counsel on the wife's behalf to the effect that it is not appropriate for the wife to have to use her capital in order to be able to sustain herself.  In fact it is described as a statement of law that that would be the case. 

15. In my view, what has to be remembered in these interlocutory proceedings is that the Court has a very broad discretion.  A considerable number of matters are to be taken into account.  Having read all the material which is before the Court in these immediate proceedings, I have the view that it would not be unreasonable for the wife to be expected to use some part of the funds in the bank account to which I have referred.  After all, these are only interlocutory proceedings. 

16. If the parties are unable to resolve their substantive financial dispute, those proceedings are listed for a pre-trial conference within a matter of months.  One would expect, unless something completely unforseen occurs, that the substantive proceedings would be heard at some stage later this year. 

17. Even at the rate of spending reflected in the amount of maintenance that the wife is seeking rather than the lower rate to which I have referred - that is not going to take a major portion out of those funds.  In any event, so far as the broad financial circumstances of the parties are concerned, from my perusal of their respective financial statements, there is something in excess of $5.4 million worth of assets.  In those circumstances, to the extent to which the account standing in the wife's name with the AMP has to be reduced, that can be taken into account in the substantive proceedings.  Bearing this in mind and the manner in which the property is held, in my view there will be ample opportunity for this Court to ultimately arrive at a determination which delivers to each of the parties a just and equitable resolution of all outstanding matters between them.

18. In those circumstances, therefore, I cannot accept the threshold submission, that is, that the wife has a need which must be provided for out of funds at the disposal of the husband.  Accordingly, in my view, the application has to be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     ____________________

Date:              1 August 2007