Sampey & Sampey

[2014] FamCA 99

FAMILY COURT OF AUSTRALIA

SAMPEY & SAMPEY [2014] FamCA 99

Family Law Act 1975 (Cth) s 72

FAMILY LAW – SPOUSAL MAINTENANCE – Where applicant husband sought to vacate order for spousal maintenance – Where husband is an undischarged bankrupt – Where respondent wife did not file any material – Where no evidence to establish need of wife for maintenance – Where husband’s Financial Statement is the only evidence of capacity to pay maintenance – Where husband has no capacity to pay – Order for spousal maintenance discharged to day upon which it stands paid

APPLICANT: Mr Sampey

RESPONDENT: Ms Sampey

FILE NUMBER: SYC 87 of 2013

DATE DELIVERED: 19 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 19 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr de Dassel

COUNSEL FOR THE RESPONDENT: In Person

Orders

IT IS ORDERED

1.That the order for spousal maintenance made on 22 April 2013 be discharged as at the date to which it stands paid.

2.That the final application be listed before the Honourable Justice Aldridge for directions only at 10 am 3 March 2014.

3.That the interim applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sampey & Sampey 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 SYDNEY

FILE NUMBER: SYC 87 of 2013

Mr Sampey

Applicant

And

Ms Sampey

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application in a Case filed on 27 November 2013 on behalf of the husband, seeking to vacate an order for maintenance, which was made on 22 April 2013, in favour of the wife.

2. The order that was made required the husband to pay, amongst other things, a bond equivalent to four weeks rent, rent in advance for two months, weekly rental to a maximum of $1,200 per week and utilities and payments for the wife’s car.

3. The husband in the application relies upon the fact that he was made bankrupt. It is not disputed that the husband is an undischarged bankrupt. The husband’s trustee in bankruptcy appeared  represented by Counsel, Mr Golledge, to assist the Court.

4. The matter first came before the Court on 12 December 2013. On that day, the wife was represented by a solicitor, whom she had but recently instructed and the solicitor sought an adjournment. The adjournment was granted and the matter was listed for hearing today, 19 February 2013.

5. The wife has chosen not to file any material in relation to the application. Therefore, there is no evidence before the Court, which would assist in establishing either whether the wife has a need for maintenance and satisfies the threshold test pursuant to section 72 of the Family Law Act 1975 (Cth). Neither is there any evidence of the husband’s evidence of his capacity to pay other than that which he demonstrates in his Financial Statement.

6. Turning first then to the husband’s capacity to pay. The Court was advised by Counsel on behalf of the trustee that the statutory payment of $3,044 a week, which the husband makes to the trustee in bankruptcy, would be unaffected by any order for spousal maintenance which the Court might make. Accordingly, I am obliged to accept that the payment of that sum, that is, $3,044 per week is a payment which I must take into account when determining the husband’s ability to pay. The husband’s liability in his bankruptcy amounts to some $28 million. 

7. The husband deposes to income of $11,442 per week and personal expenditure including the payment to the trustee of $11,871 per week.

8. On the face of the husband’s Financial Statement, he earns a salary of $11,442 a week. He pays income tax of $4,813 per week. He pays mortgage payments for the property in which he resides in Sydney of $936 per week and rates of $51 per week. His professional indemnity insurance costs him $1,558 per week. He pays family health insurance for himself and the children of $109 per week. 

9. He claims to require general living expenses of $960 per week for himself and the children. There is nothing in the husband’s Financial Statement at Part N, paragraph 60 in relation to the expenses he claims for the children, which prima facie appear to be excessive.

10. In those circumstances, I find that the husband has no capacity to pay spousal maintenance and I discharge the order for spousal maintenance to the day upon which it stands paid.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 19 February 2014.

Associate: 

Date:  19 February 2014