Sandberg and Sandberg

[2016] FamCA 357

FAMILY COURT OF AUSTRALIA

SANDBERG & SANDBERG [2016] FamCA 357

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Application by the wife pursuant to sections 72 and 74 of the Family Law Act 1975 (Cth) that the husband pay her weekly spousal maintenance – Where there is one child who resides with the husband in the former matrimonial home – Where the wife works on a casual basis – Where the husband submitted that the wife has a much greater earning capacity than her current income – Where the Court is of the view that the wife does not have a greater earning capacity – Where the wife is unable to support herself adequately on her current income – Where the wife’s weekly expenses leave her with a shortfall – Where the husband’s weekly expenses leave him with a surplus – Orders made that the husband pay to the wife $204 per week by way of interim spousal maintenance until the wife receives proceeds of the sale of the former matrimonial home – Where such an amount will have the effect that both parties experience a similar weekly financial shortfall.

Family Law Act 1975 (Cth) – s 72(1), s 75(2), s 75(3)
APPLICANT:	Ms Sandberg

RESPONDENT: Mr Sandberg

FILE NUMBER: SYC 2605 of 2015

DATE DELIVERED: 17 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 9 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Coleman Greig Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bell

SOLICITOR FOR THE RESPONDENT: Delaney Lawyers

Orders

1. That the husband pay to the wife, or as she shall in writing direct, the sum of $204 per week, first payment within 7 days, by way of interim spousal maintenance until such time as the wife receives $150 000 from the proceeds of sale of the former matrimonial home. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandberg& Sandberg 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 2605 of 2015

Ms Sandberg

Applicant

And

Mr Sandberg

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Sandberg (“the wife”) for payment of interim spousal maintenance by Mr Sandberg (“the husband”).  The order sought by the wife is to the effect that the husband pay spousal maintenance to her in the sum of $400 per week until such time as she receives payment of the sum of $150 000 out of the proceeds of sale of the former matrimonial home at Ebenezer.  The application is opposed by the husband who seeks that the application be dismissed.

Brief Background

1. The husband was born in 1962 and the wife was born in 1964.  They commenced cohabiting in early 1989, married in 1991 and separated on 22 July 2014.  There is one child of the marriage, B (the child) who was born in 1998.  The child resides with the husband in the former matrimonial home.

Threshold Matter

1. Sub-section 72(1) of the Family Law Act 1975 (Cth) (“the Act”) provides in 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 reasons specified therein. These reasons include for any other adequate reason having regard to any relevant matter referred to in s 75(2) of the Act. Amongst the relevant matters is s 75(2)(g) “… a standard of living that in all the circumstances is reasonable”.

2. It is submitted on behalf of the wife that at the time of separation she was working with a family company C Pty Ltd for a nominal salary.  The wife had not otherwise worked in paid employment since 2011.  In approximately October 2015 the wife commenced working at D Pty Ltd, Suburb E on a casual basis earning income of $180 per week.  The wife continues to work in this capacity and her current income from such employment is $184 per week.  In addition, she receives an $8 dividend as well as a $10 New South Wales Department of Transport allowance.  This is total weekly income of $202.

3. It was submitted on behalf of the husband that the wife has a greater income earning capacity than this.  It was said that she ought to seek employment other than on a part time basis. 

4. I must say I am not persuaded that the wife has a capacity to earn at a much greater rate than her current income.  As was submitted on behalf of the wife, the husband conceded in his affidavit (paragraph 35) that over the period from approximately 2001 to 2011 the wife worked part time at Woolworths.  He said this was usually four nights per week and for this she received regular income of approximately $230 per week.  In my view what the wife’s current employment appears to reflect is her long-standing income earning capacity over the major part of the parties’ marriage, namely part-time employment.

5. In my view, on such an income it must be the case that the wife is unable to support herself adequately. The wife is in receipt of the Newstart allowance but the Court is unable to take this into account pursuant to s 75(3) of the Act.

6. The wife’s Financial Statement reflects a very modest standard of living.  Her weekly expenses consist of the following:

   Rent$150

   Motor vehicle registration           $19

   Credit card payments  $50

   Average weekly expenses   $348

   ^______

   $567

7. The wife is renting one room in accommodation owned by relatives. 

8. Leaving aside the government benefit, the wife has shortfall of income compared with expenditure of $365 per week ($202 - $567 = $-365).

9. In my view, the wife is unable to support herself adequately within the meaning of s 72(1) of the Act. This is on the basis that the income which she is able to earn is insufficient to provide her with a standard of living which is reasonable in all the circumstances.

Husband’s Capacity

1. In his Financial Statement the husband estimated his weekly salary before tax as being $3035.  Learned counsel for the wife tendered a copy of the husband’s 2015 income tax return which showed his taxable income as being $161 522.  It was suggested therefore that since the husband continues to occupy the same position his estimated income in his Financial Statement appears to be an underestimate.  I accept this submission and find his income from salary to be at least in accordance with his 2015 income tax return which would be $3106 per week.  In addition he receives $5 per week from a dividend and distribution.  This would be total income of $3111. 

2. The husband estimates his weekly expenses as being a total of $3660.  But this is an error because it does not correctly reflect the husband’s estimates in his Financial Statement.  Some of the figures are incorrect.  He estimates at Part N that his own average weekly expenses come to a total of $838 whereas the correct total of these estimates is $723.  He estimates the child’s expenses as being a total of $630 per week.  Doing the correction using the husband’s estimates, his total personal expenditure would be $3665. 

3. But there are numerous difficulties about this.  Firstly the husband estimated his cost of paying income tax on a weekly basis at $1178 yet his 2015 income tax return showed assessed tax payable at $47 462 which would suggest a current weekly income tax cost of approximately $913, rather than $1178. 

4. In relation to the husband’s weekly motor vehicle expenses he estimated these as being motor vehicle insurance $17, motor vehicle registration $7, petrol $200, maintenance $20 and road tolls $50.  The difficulty is that it is clear from the husband’s 2015 income tax return that he claimed work related car expenses deductions on his 2015 income tax return of 82 percent of petrol, insurance, repairs, registration, third party insurance, inspection, tolls and parking.  Accordingly on the basis that the husband has claimed an 82 percent deduction for income tax purposes in respect of his car expenses in my view he has considerably overestimated these real costs to him.  Doing the best I can in these somewhat difficult circumstances I shall attribute $70 per week as being his motor vehicle expenses. 

5. I do not propose to allow the $60 per week estimate for holidays because the wife is certainly not enjoying any holidays and living more modestly than the husband. 

6. On this basis I find his own average weekly expenses to be $393.  To this must be added his other personal expenditure set out in Part G but with corrections, this being a total of $2023 as well as the $70 motor vehicle expenses and tolls.  This makes the husband’s total personal expenditure the amount of $2486. 

7. To this must be added the child’s costs.  I accept that the husband has overestimated the child’s education expenses about which there was considerable debate.  His school fees including library and extras are agreed as $9750 per annum for three terms.  The husband estimated this cost at $270 per week which I understand he calculated over 36 weeks.  Counsel for the wife submitted that this should be calculated over 52 weeks.  Doing the best that I can, I shall apportion this amount over 44 weeks being the difference between the two approaches to arrive at a weekly cost of $222 per week.  The husband estimated the child’s weekly costs at $630 but upon adjusting his $270 per week educational expenses to $222 reduces the child’s weekly costs to $582. 

8. Therefore, the husband’s overall costs including those of the child are $3068 per week ($2486 + $582 = $3068).  On the basis that the husband’s weekly income is $3111 and his total personal expenditure including for the child is $3068 per week, this leaves him with a surplus of $43 per week. 

Conclusion

1. In my view the exercise does not end there.  As I have indicated, the wife has a weekly shortfall of $365.  The husband has a surplus of $43.  The difference between these positions is $408 per week.  I shall divide this by two and arrive at the mid-point of say $204.  If the husband was to pay this weekly amount to the wife the effect would be that each party would have a similar weekly shortfall.

2. In my view, this sum ought to be paid by the husband to the wife until she receives the $150 000.  It will be a matter for the husband to adjust his affairs to enable him to pay this amount to the wife. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 17 May 2016.

Associate:     

Date:              17 May 2016