Sandos & Sandos
[2025] FedCFamC1F 131
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sandos & Sandos [2025] FedCFamC1F 131
File number: WOC 219 of 2024 Judgment of: CAMPTON J Date of judgment: 28 February 2025 Catchwords: FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – Where the wife seeks that the husband pay her $1,806 per week in spousal maintenance – Where the husband concedes that spousal maintenance should be paid, but puts the quantum into issue – Where the husband does not put the wife’s evidence as to her weekly expenses into issue – Where the wife does not utilise one of her unoccupied real properties to produce income – Where the husband did not file and Financial Statement and did not adduce material evidence as to his financial circumstances – Where an inference is made, and the evidence establishes, that the husband has capacity to pay a reasonable periodic amount to maintain the wife – Orders made providing for the husband to pay to the wife $1,500 each week by way of interim spousal maintenance. Legislation: Family Law Act 1975 (Cth) ss 72, 74, 79 Cases cited: Bevan and Bevan (1995) FLC 92-600; [1993] FamCA 95
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA 32
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 27 February 2025 Place: Sydney Counsel for the Applicant: Mr Stapleton Solicitor for the Applicant: Mitchell Family Lawyers The Respondent: Litigant in person ORDERS
WOC 219 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SANDOS
Applicant
AND: MR SANDOS
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
28 FEBRAURY 2025
THE COURT ORDERS THAT:
1.Pending further order, the husband shall cause to be paid to the wife by way of spousal maintenance the sum of $1,500 per week to be deposited each Monday into her nominated bank account as nominated to the husband in writing within seven days of this order, with the first payment to be made on or before 7 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandos & Sandos has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of her Application in a Proceeding filed on 24 January 2025 Ms Sandos (“the wife”) sought a raft of interlocutory financial and other orders. The suite of relief sought by her, except as to periodic spouse maintenance payable by Mr Sandos (“the husband”), was compromised by way of consent orders made between she, the husband, and a party joined to the proceedings at the hearing on 27 February 2025.
These reasons determine the application of the wife seeking, pending further order, that the husband pay her spousal maintenance of $1,806 per week. By way of his Response to an Application in a Proceeding filed on 27 February 2025, the husband opposed the making of the order sought. After judgment was reserved prior to lunch, the husband obtained leave to re‑open during the afternoon of the hearing, varying the terms of his Response such that he agreed to an order being made providing that he pay to the wife, by way of interim spouse maintenance, the sum of $900 each week.
For the reasons that follow, orders will be made providing for the husband to cause the wife to be paid $1,500 each week into a bank account nominated by her.
The proceeding has been listed for trial over five days commencing 17 November 2025.
DOCUMENTS
The wife relied on her affidavit filed on 24 January 2025, her Financial Statement filed on 24 January 2025, and documents tendered into evidence at the hearing. The husband relied on a document he signed on 26 February 2025 in the form of an affidavit, affirmed by way of oral evidence given at the hearing. He did not file a Financial Statement.
BACKGROUND
By way of an Initiating Application filed on 28 February 2024 in the Federal Circuit and Family Court of Australia (Division 2), the wife sought orders as to the adjustment of property between she and the husband pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). By way of a Response to an Initiating Application filed on 2 April 2024, the husband sought different orders as to the adjustment of property. The proceeding was transferred to this Court on 12 November 2024.
The wife was born in 1956 and is currently 68 years old. The husband was born in 1957 and is currently 67 years old. The parties commenced cohabitation in 1978 and were married in 1982. The husband contends that he and the wife affected separation on 14 October 2014 and that the wife locked him out of the matrimonial home in January 2022. The wife contends that the parties separated in January 2022. They are not yet divorced. There are three children of the marriage, all of whom are now adults.
The husband is an accountant and a real estate agent. He operates two trading enterprises, B Pty Ltd (“B Pty Ltd”) (an entity he concedes is his property, he being its sole shareholder and director), a financial services concern, and C Company. The wife says that she has not been in formal employment outside of the husband’s business, and that she worked in the husband’s trading enterprises in a secretarial role from time to time during their relationship but has not undertaken such work in over 20 years. I accept that evidence in circumstances where the husband does not put it into issue.
The husband said since the date he contends separation occurred in October 2014, he has paid the wife $1,500 of “spousal maintenance on a weekly basis”, with “superannuation too”. The wife says that from 2020, the husband provided her with $1,000 per week and then from June 2021 paid her $1,165 each week. The wife says that the money was initially paid from D Pty Ltd (“D Pty Ltd”), and the husband says the wife was paid from “various entities”. The husband says that since B Pty Ltd was incorporated, that entity has paid those funds. The wife agrees that at some point the funds began coming instead from B Pty Ltd’s E Bank Account.
Exhibit 2 are statements as to account #...41 held by B Pty Ltd for the period 14 February 2024 to 13 September 2024. They record funds paid out with the description “[the wife] wages” of $1,165 each week. The last date of payment in the exhibit is 16 May 2024. The wife says, and I accept it as it was not put into issue by the husband, that these payments ceased in December 2024, shortly after the first listing of the s 79 dispute in the Major Complex Financial Proceedings list.
THE LAW
In Hall v Hall (2016) 257 CLR 490 at 496, the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, 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).
The fact of the husband facilitating historical payments from B Pty Ltd to the wife without her undertaking work to achieve payments and the terms of the husband’s Amended Response implicitly accept that the wife has satisfied the gateway requirements of s 72 of the Act. I so find. The issue therefore devolves to the quantum to be paid. The Act the focus is on what is reasonably necessary for adequate support.
The Financial Statement of the wife filed on 24 January 2025 records nil income and total weekly expenditure at $1,806. The husband did not put into issue her evidence as to the costs of her weekly expenses. They are unremarkable, being for food, house repairs, gas, electricity, internet, a motor vehicle, clothing, medical, entertainment, gifts, and toiletries. The husband did not file a Financial Statement. A comparison as to the cost of his weekly expenditure is not available. Implicitly, the husband accepts the wife’s evidence as being a reasonable quantification of her periodic needs of self-support. The evidence establishes that $1,806 is a reasonable amount to adequately meet the wife’s weekly expenses.
The wife’s Financial Statement records that she has the benefit of her permanent residence at F Street, Suburb G, New South Wales (“the Suburb G property”). It further records that she has a property at H Street, Suburb J, New South Wales (“the Suburb J property”) with an estimated value of $870,000 and subject to a mortgage of $105,000. The husband submitted at the hearing that he has previously asked the wife to lease the Suburb J property to tenants, therefore allowing her to receive rental income, but that the wife has not complied with this request. The wife did not provide an explanation or make any submission as to why she has not leased the Suburb J property to produce rental income. There is some merit in the husband’s submission that the wife has the capacity to make some income by way of rental payments. There is no evidence to quantify the value of the rental if received.
The wife’s Financial Statement further records she has savings of approximately $49,000 and that she owns 100 per cent of the shares in K Pty Ltd, which operates an NAB bank account with nominal funds, and owns a real property at L Street, Suburb M subject to a mortgage in the range of $895,000.
It is clearly established that a person seeking spousal maintenance is not necessarily obliged to resort to any capital that they might have before they can receive the benefit of an order for spousal maintenance (Bevan and Bevan (1995) FLC 92-600; Mitchell and Mitchell (1995) FLC 92-601). The joint balance sheet filed by the parties on 16 December 2024 records the husband’s assertion that the property of the parties is in the range of $19 million. It is uncontroversial that the husband controls a greater share of that property than the wife, comprising of commercial premises. The wife, in the circumstances of this case, ought not be required to expend her capital and savings so as to achieve a reasonable quantum of periodic spouse maintenance.
Adopting a broad-brush approach, with an allowance for the wife to achieve some rental income from the Suburb J property should she elect to do so, I find it reasonable that the wife has established an inability to adequately support herself in the sum of $1,500 per week.
The husband has historically conceded a longstanding capacity to cause to be paid pay to the wife $1,165 each week. His Amended Response concedes a capacity to pay $900 each week. The failure of the husband to file a Financial Statement allows for an inference that he has capacity to pay any reasonable order for spouse maintenance.
The financial statements of B Pty Ltd for the year ended June 2023 (Exhibit 1) record the entity achieving a net profit of $425,310 for that year and a net profit of $225,276 for the year ended 30 June 2022.
The B Pty Ltd E Bank transaction account statements #...41 for the period of 14 February 2024 to 13 September 2024 (Exhibit 2) record a weekly payment of $11,000 each week to D Pty Ltd described as “Facility fee”.
The ASIC search for D Pty Ltd (Exhibit 4) records its sole shareholder as Ms N, the daughter of the parties, and the husband and the daughter as directors.
The P Bank cash management account statements for D Pty Ltd for the period of 29 December 2023 to 31 December 2024 (Exhibit 3) records the credit of the $11,000 each week paid from B Pty Ltd (Exhibit 2), with the description as “[Mr Sandos] Facility fee”.
I find absent explanation from the husband, that his corporation, B Pty Ltd, generated at least $11,000 each week during the 2024 calendar year that was paid to D Pty Ltd. The wife contends that the husband is the beneficial owner of D Pty Ltd and that the corporation is his property amenable to adjustment pursuant to s 79 of the Act. The weekly payment of $11,000 from the husband’s corporation to the corporation of the party’s daughter is absent documentation supporting any reason for it, such as repayment of a loan or some other liability. A plain reading of Exhibit 3 records descriptions as to the application of funds in the P Bank cash management account for the direct benefit of the husband, being paid to corporations he concedes are his property in the joint balance sheet including O Company, Q Pty Ltd, the trustee of the husband’s self-managed superannuation fund, and R Pty Ltd. Further, funds flow from D Pty Ltd to other corporations of which the parties are in dispute as to whether others hold their interests in them beneficially for the husband. Additionally, regular payments are made from the D Pty Ltd bank account to S Company. I find that the husband’s property, including by way of his corporate interests, and his resources, establish that he has capacity to make provision to pay the determined reasonable periodic needs of the wife of $1,500 each week.
CONCLUSION
For all of the above reasons, I find it proper for the husband to pay the wife $1,500 per week by way of periodic spousal maintenance. An order shall be made to that effect.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 28 February 2025
0