Skinner and Cluny (No. 2)

[2011] FamCA 494

FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY (NO. 2) [2011] FamCA 494

FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – Child support departure

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Proceedings (Costs) Act 1981(Cth)

Stein & Stein [2000] FamCA 102

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

APPLICANT: Mr Skinner

RESPONDENT: Ms Cluny

FILE NUMBER: BRC 812 of 2010

DATE DELIVERED: 14 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A. Cooper

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr M.J. Drysdale

SOLICITOR FOR THE RESPONDENT: Hirst & Co

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. There be a departure from the administrative assessment of child support payable by the Applicant Husband in respect of the child.

2. Pursuant to sections 117 and 118 of the Child Support (Assessment) Act (Cth) the weekly rate of child support payable by the Applicant Husband in respect of B (born … August 2009) (“the child”) be fixed at $1200.00 from the date of these orders.

IT IS FURTHER ORDERED BY CONSENT UNTIL FURTHER ORDER:

1. That the Applicant Husband spend time with the child at all times as may be agreed between the parties and failing agreement:

   a.From Monday 13 June 2011 to 24 August 2011 on a two week rotation:

   Week 1

   i.Monday, 7:30am to 12:30pm

   ii.Saturday, 7:30am to 12:30pm

   iii.Sunday, 7:30am to 12:30pm

   Week 2

   i.Tuesday, 7:30am to 12:30pm

   ii.Wednesday, 12:00pm to 5:00pm, with the Respondent Wife to pick the child up at 5:00pm

   iii.Friday, 7:30pm to 12:30pm.

   b.From 25 August 2011 to 25 November 2011 on a two week rotation:

   Week 1

   i.Thursday, 12:00pm to 6:00pm

   ii.Saturday, 12:00pm to 6:00pm

   iii.Sunday, 12:00pm to 6:00pm

   Week 2

   i.Tuesday, 12:00pm to 6:00pm

   ii.Thursday, 12:00pm to 6:00pm

   iii.Friday, 12:00pm to 6:00pm

   c.From 26 November 2011 to 25 February 2012 on a two week rotation:

   Week 1

   i.Wednesday, 12:00pm to 6:00pm

   ii.Friday, 4:00pm to Saturday, 9:00am

   iii.Sunday, 12:00pm to 6:00pm

   Week 2

   i.Monday, 12:00pm to 6:00pm

   ii.Wednesday, 12:00pm to 6:00pm

   iii.Thursday, 4:00pm to Friday, 9:00am

   d.From 26 February 2012 to 25 May 2012 each week:

   i.Monday, 12:00pm to 6:00pm

   ii.Wednesday, 12:00pm to 6:00pm

   iii.Friday, 12:00pm to Saturday, 12:00pm

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. By way of spousal maintenance, the husband shall pay to the wife, by depositing to a bank account nominated in writing by her, the sum of $350 each week commencing on 21 June 2011.

IT IS ORDERED THAT:

1. The applications and cross-applications in respect of the payment of retrospective amounts of either child support departure or spousal maintenance be adjourned for hearing by the trial judge.

2. The husband pay to the wife within 7 days of these orders, the sum of $1600.00 being costs of and incidental to the filing and withdrawal of the Notice of Abuse filed by the Applicant Husband. 

3. In respect of any application for costs of and incidental to the proceedings heard and determined today:

   a.Written submissions be provided on behalf of the husband on or before 4.00pm on Friday 17 June 2011 and on behalf of the wife on or before 4.00pm on Friday 24 June 2011;

   b.The submissions so provided be considered by Justice Murphy, and orders made with reasons, in chambers unless the solicitors or counsel for the wife submit otherwise in which case oral submissions will be heard at a time and on a date to be advised; and

   c.Paragraph 6 above is stayed pending a determination of such application for costs.

4. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS FURTHER ORDERED THAT:

1. Both parties are each granted a costs certificate pursuant to s 10(2) of the Federal Proceedings (Costs) Act1981 (Cth), by reason of the fact that proceedings on 17 May 2011 and 3 June 2011 were rendered abortive.

IT IS DIRECTED THAT:

1. The Registrar list the matter for the allocation of final hearing dates to the callover before Justice Murphy at 10:00am on 13 July 2011.

2. At the directions hearing on 16 June 2011:

   a.the parties and legal representatives shall confer with a view to reaching agreement with respect to all such directions as might be necessary to have this matter proceed for trial over two days in the period September/October 2011;

   b.the parties shall provide to the Registrar minutes of consent relating to the issue of the jewellery previously dealt with in paragraph 16 of the orders made by consent on 12 April 2010 and in default of so doing, the Registrar provide directions for the determination of that issue at trial. 

IT IS NOTED that publication of this judgment under the pseudonym Skinner & Cluny is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Skinner & Cluny (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 812 of 2010

Mr Skinner

Applicant

And

Ms Cluny

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Proceedings between the husband and wife commenced in the Federal Magistrates Court some time ago.  Today, a series of applications is brought before me on what has been called a “short cause day” so as to determine a number of financial and other applications prior to the parties proceeding, inevitably it would seem, to a trial between them. 

2. Included among the applications and cross-applications was an application for contravention brought by the husband.  Fortuitously, Young J was visiting the registry last week and was able to deal with that aspect of the matter, thereby freeing me to deal with each of the other applications and cross-applications today. 

3. His Honour ordered that each and all of the contraventions asserted by the husband be dismissed.  He was ordered to pay the wife costs.

4. The parties read before me today affidavit material consisting of well over 1000 pages.  The husband has filed no less than eight affidavits in the last eight months.  For her part, the wife has filed five affidavits in the same period.  Those facts, and reference to the history of the proceedings might give rise to some appreciation of the degree of conflict between these two parties. 

5. Earlier today, the parties, with the assistance of their legal advisers, were able to agree upon minutes of varied parenting orders. Those orders will be made by consent. The parties were also able to reach agreement about a number of what might be described as preliminary or peripheral matters.

6. Before me for determination falls an application for child support departure and spousal maintenance. 

7. It is common ground that there is a child support assessment of $22 per week. The wife originally sought an application that the husband pay spousal maintenance in the sum of about $3300 a week together with a departure application. For his part, the husband sought an order that he pay $1200 per week by way of child support departure. Unsurprisingly, the wife consented to that order. An order will be made by consent that, pursuant to section 118 of the Child Support (Assessment) Act, the husband pay, in lieu of the child support assessment of $22 per week, the sum of $1200 per week as and from today.

8. The background just described occurs in the context of what are, in the ultimate, applications for settlement of property and spousal maintenance. 

9. Those applications fall within a background which, insofar as it is uncontroversial, would appear to consist of the following.

10. The parties commenced cohabitation in May 2008, married in October that year and separated some 17 months later, on 20 September 2009.  The parties have a child ,B, (“the child”) who is still a baby, born in August 2009.  The husband has, and it seems has had for some years, a business run through, I gather, a corporate trust structure.  He has retained a forensic accountant and obtained a valuation from him.  There are allegations (not for me to determine today) that there has been on his part a failure to properly disclose consistent with obligations upon each of the parties pursuant to the Act and Rules. 

11. The wife seeks to obtain her own forensic accountant so as to, it seems, prepare a report in respect of the husband’s business interests.  If the wife is intent upon that course of action, then it is necessary to observe that it was the husband who had earlier retained Mr M, for that purpose. The wife seeks to obtain her own forensic accountant in those circumstances.  Mr Cooper, who represents the husband, did not argue to the contrary.  In making that order, it needs to be said that I do not for a moment suggest that the integrity of Mr M is impugned in these proceedings.  He, like any other expert retained by one party, might be perceived as unsatisfactory to the other party where there is high conflict between the parties and where a significant degree of suspicion attends that high conflict. Such would appear to be the case here.

12. It should be noted, then, that, for the wife’s part at least, it is asserted that much work remains to be done to prepare her case for trial.  I have indicated to the parties that I would attempt to facilitate the earliest possible trial of this matter. 

13. The husband, through his solicitor, indicates that he is today ready to proceed to trial and wants a trial at the earliest opportunity so as to bring this matter to an end.  For her part, the wife, through her counsel, says that she is not currently prepared for trial.  Counsel says that delay will attend the obtaining of her own forensic accountant’s report.

14. I canvassed with each of the parties the means by which I could facilitate the earliest possible trial date, given those factors just referred to.

15. In a system being piloted in this registry, I run callovers at which trials for myself, Forrest and Bell JJ are allocated. Generally speaking, a precondition of being placed on that callover is that a Registrar has, together with the parties, concluded that the matter is ready in all respects to proceed to its allocated trial dates.  At that callover, I seek from legal representatives of the parties undertakings to the Court that as far as they are each concerned, the matter is in all respects ready for trial, and that they will advise the Court immediately they become aware of any matter that might impinge upon that readiness for trial and that both parties should be prepared to argue any applications for costs arising in the event that the trial dates are not proceeded with.

16. It is clear on the assertions by the wife at least that the matter will not be ready for trial at least until the report which she foreshadows has been obtained.  This matter is due to be heard before a Registrar for further trial management this coming Thursday, 16 June. 

17. I will direct that this matter is to be placed on my callover on 13 July 2011 with a view to the matter being allocated trial dates in about September/October.  I do so notwithstanding the fact that the matter will not be, on the wife’s case, ready for trial at that time.  Nevertheless, by the time of the callover, which is in about three weeks time, I have an expectation that the legal representatives for the parties will give me the assurances to which I have just referred.

18. I make it clear that I am doing so in this case because the history of the matter reveals that the parties have paid a very significant sum of money in legal costs, and in my view, the matter needs to be brought to an end at the earliest opportunity. 

19. In that latter respect, I cannot but refer to the fact that this forthcoming trial will be about property and other financial issues, but in circumstances where the parties had an 18-month relationship.  I am told by counsel who represents her that the wife has already spent $270,000.  And, as I earlier indicated, there is, as she would have it, a significant amount of work which yet needs to be undertaken.  It does not by any means seem fanciful that if she has spent $270,000 already, that something approaching that figure might be spent in the preparation for trial. In that event, over half a million dollars will have been spent arguing about a just and equitable outcome and spousal maintenance emanating from an 18 month relationship.

20. The husband, for his part, has spent $89,000 on lawyers together with an additional $20,000 in respect of the business valuation to which I have earlier referred and $3,500 in respect of real property valuations, a total of about $112,500.  The parties between them will spend close to three-quarters of a million dollars bringing this matter to trial.  That strikes me as an obscenity, particularly where it is considered how that might be spent on their child who is not yet two. But it is their money, and they should, I suppose, feel free to spend it as they wish.  One suspects that it is not fanciful that an application for costs will follow the result of the trial, with the potential for further pain.

21. The background is, in my view, important to an application for interim spousal maintenance which remains to be determined today.  Before considering that application, it is necessary to refer to three other aspects of the respective applications. 

22. The first is that the husband filed in November a Notice of Child Abuse.  Three weeks later, he filed a Notice of Discontinuance of that Notice of Child Abuse.  I’m not sure how one files a Notice of Discontinuance of a Notice of Child Abuse; it does not institute a “cause of action”. But, nevertheless, it seems that both parties accepted that the “Discontinuance” brought to an end whatever each of them contemplated that the Notice of Child Abuse effected.

23. I have, for reasons earlier indicated, made an order that the husband pay $1600 in costs in and about the Notice of Child Abuse just referred to. 

24. I cannot see that there was any foundation for the filing of that notice, and it is that, together with the other reasons earlier given, which founds the order for costs which I have made. 

25. Each of the parties also seeks orders for what was referred to during the course of the proceedings as “retrospective payments” of maintenance and/or child support.  Sensibly, as it seems to me, each of the legal practitioners suggest that those respective applications should be adjourned to be heard by the trial Judge when the full context of the parties’ financial circumstances (and, indeed, other circumstances) can be more adequately examined.

26. Finally, each of the parties agree that an order made as part of consent orders between the parties on 12 April 2010 should be discharged.  Paragraph 16 of those orders foreshadows the sale of some jewellery.  During the course of discussions, given that both parties agreed that that order was to be discharged, I asked each whether there was agreement as to what might occur in that respect.  In the ultimate, counsel for the wife suggested that further discussions might take place between the parties with a view to resolving “the jewellery issue”. 

27. I indicated to the parties I would adjourn that part of the application to the Registrar’s directions hearing on Thursday, 16 June in the expectation that commonsense and intelligence would produce a consent arrangement in respect of the sale of the jewellery or, should it not, for further directions to be made by the Registrar in respect of that aspect of the application.  Formal orders will reflect that position. 

28. That then leaves for determination the wife’s application for spousal maintenance.

29. In its current form, the formal application by the wife seeks interim spousal maintenance in the sum of $3153 a week, together with, as I have earlier said, an application for departure from the administrative assessment of child support, (which is said uncontroversially to be $22 a week), to a sum of $348 a week. 

30. That would see, then, payments in one form or another by the husband of about $3,500 a week, (noting, in saying that, that separate applications for departure from child support and interim spousal maintenance involve the application of different principles). 

31. The husband seeks, relevantly, an order that the application for spousal maintenance be dismissed, and an order that he pay by way of departure from administrative assessment the sum of $1200 a week.

32. As I said, perhaps unsurprisingly the wife consents to the order for $1200 a week by way of departure. Equally unsurprisingly, she indicates that her application for spousal maintenance alters accordingly.  As amended, the wife’s application for spousal maintenance seeks an order for $600 per week. 

33. By way of background, particularly to submissions made on behalf of the husband, the terms of some of the orders made by consent on 12 April 2010 should be recorded as follows:

    17.The wife’s application for spousal maintenance and child support departure on an interim basis shall be withdrawn by the wife on the execution by the parties of the Binding Child Support Agreement to be entered into by the parties as referred to in the notation hereto. 

    …

    NOTATION:

    It is noted that the parties have agreed today to enter into a Binding Child Support Agreement as defined in the Child Support (Assessment) Act as soon as same can be prepared by the husband’s solicitors and its terms agreed upon between the parties so as to include the following terms:

    i.The relevant child, [B], born […] August 2009;

    ii.the periodic payment of child support by the father to the mother in the sum of $600 per week from 12 April 2010 to 30 June 2010;

    iii.the periodic payment of child support by the father to the mother in the sum of $1200 per week from 1 July 2010 until a child support-terminating event as that term is defined in the Child Support (Assessment) Act, indexed annually on 1 July for the increase in the CPI for Brisbane in the previous year;

    iv.that an additional child support-terminating event shall be the mother entering into a marriage or a de facto relationship as that term is defined in section 4 of the Family Law Act;

    v.the payment by the father of private health insurance premiums that cover the said child;

    vi.the payment by the father of school fees and all education outgoings incurred in respect of the said child’s enrolment and attendance at schools that are mutually agreed between the parties;  and

    vii.the payment by the father of the costs of extracurricular activities undertaken by the said child and mutually agreed between the parties such as swimming lessons, music lessons and the like.

34. The husband does not seek to argue that the wife is estopped by reason of the terms of that order, and in particular the notation thereto, from bringing the application which she now brings. But, it is submitted on behalf of the husband that the order and notation “sets the tone” by which the reasonable weekly needs of the wife should be assessed and any orders to be made.  An analogy might be drawn between a binding financial agreement that is not binding within the meaning of the Act.  In those circumstances, the terms of the agreement can be seen to be some evidence of what the parties considered to be reasonable at the time that the agreement was executed (see Woodland & Todd).

1. The wife submits that inferences can not be drawn from what is said in the terms of the orders without knowing the facts and circumstances pertaining to the agreement, and, in particular, what was known, or not known, of the respective needs and income at that time or the context of why such an order might have been considered “otherwise proper” within the meaning of the child support legislation. 

2. I consider that the highest that the previous order can be put in these proceedings is that it is some evidence of what the parties may have considered reasonable based on their then knowledge and the circumstances otherwise pertaining that persuaded them of the desirability of the proposed settlement.  Its weight is, then, slight.

3. It is significant, in my view, that the consent orders contemplate a future settlement at which terms would hopefully be agreed, but the order or, rather, the notation to the order, does not record that a Binding Child Support Agreement has been made.

4. The Act sets out the matters that need to be considered if an order for spousal maintenance is to be made.  As the Full Court said in Stein & Stein:

   Spousal maintenance is ultimately governed by the provisions of section 72 and section 74, namely there being no right to spousal maintenance unless there is a capacity to meet it and an inability by the claimant to meet the claimant’s own self-support.

5. Here, it needs to be noted that the application needs to be assessed on the basis that an application for final financial relief is likely to be determined in September or October.  The context for the current application, then, is, importantly, that a final determination of the parties’ financial affairs will occur in about six months or so. 

6. Section 72 provides for a threshold question:  spousal maintenance is payable if, but only if, the potential recipient spouse is unable to support himself or herself by reason of specified factors, here, relevantly, care and control of a baby not yet two. 

7. The husband sensibly, as it seems to me, concedes the wife’s role in that respect and the consequent impact same has on a potential need for maintenance.  The husband mounts an attack on the wife’s asserted reasonable needs. 

8. That attack must, in part, be seen to have merit.

9. The wife’s affidavit contains a list of what is there asserted to be her reasonable weekly needs in respect of interim maintenance.  It needs to be borne in mind that needs can be different from expenses (see eg Stein referred to above).  The wife’s claimed needs total $1943.  In addition, the wife claims $1000 a week in respect of future housing for herself and the child. 

10. At the moment, the wife resides with her elderly parents and deposes to difficulties with that situation continuing.  She says that she estimates the cost of renting a property in the Suburb H area to be about that sum. 

11. In addition to that sum the wife claims ‑ in respect of a property not yet obtained ‑ an additional $210 a week comprising $50 a week for electricity, $40 a week for gardening and lawn mowing and $120 a week for a cleaner.  The wife says, “I would like assistance cleaning the house from a cleaner for five hours a week at $24 per hour.” 

12. The former list of expenses which the wife describes as her current needs include among them the following: 

    Hairdressing and toiletries - I have my hair done at [Business J] on average every six weeks with a cost of $260.  I also have to buy hair care products, makeup and toiletries which over two months I estimate being $500.  I also wish to have a facial once a month, which I estimate to be $150 per month.  I also wish to recommence attending my beauty therapist for waxing once a month, which I estimate to cost $200 per month.

    The amount claimed by the wife, then, in respect of “hairdressing and toiletries” is $290 per week. 

13. In addition, the wife claims in respect of “personal training” a sum of $140 a week.  She deposes “I wish to have attend two sessions of training per week, otherwise I wish to join a gym to regain my fitness since giving birth”.  As a final example, the wife claims among her interim needs, the sum of $50 per week in respect of ironing: “I wish to have someone come to assist me with this once a week for two hours”.

14. Counsel for the wife conceded that in the context of an application for interim spousal maintenance, many of those items of expenditure could be “trimmed”.  Thus trimmed, the wife’s case amended from her formal application, which, it should be noted, also takes account of the $1200 per week agreed child support departure, was for $600 per week. 

15. The concession by counsel for the wife was, with respect, sensible.  In my view, the expenses claimed could not, in very many respects, be sustained as necessary within the meaning of the Act on an application for interim spousal maintenance.

16. The figures so “trimmed” by counsel total $755 in lieu of the $1943 contained within the wife’s affidavit.  In a similar vein, counsel altered the claim in respect of accommodation to $800 per week. 

17. It seems to me that the latter sum should be more than sufficient for reasonable accommodation for the wife and a very young child.  I will allow half of the claimed $50 a week for electricity in the sum of $25 per week.  I will not allow or make any allowance for $40 per week for gardening and lawn mowing or $120 per week for a cleaner.  Thus altered, the wife’s total reasonable weekly needs are, inclusive of the accommodation and other cost to which I’ve just referred, about $1580 per week. 

18. As has often been said in very many cases, the calculation of maintenance, and, in particular, interim maintenance, does not purport to be a mathematical exercise.  I will round that to $1600 per week for the purposes of other calculations.

19. As I have earlier said, the husband, through his solicitor, says that he agrees to paying $1200 per week in circumstances where he says that the wife should receive no spousal maintenance.  While so much is understood, the concession of the payment of that amount of child support cannot be seen as meeting a claim for child support and a claim for spousal maintenance. 

20. The two require the application of different criteria and considerations, although, of course, there is an overlap in needs that will be met by the respective payments (see eg Stein above at paragraphs 53 to 56). Examples might be seen to be the cost of a motor vehicle, shared outings and the like, and perhaps the most important example of such a shared expense might be seen to be accommodation for both wife and child.

21. Here, as I’ve earlier said, the husband attacks the wife’s claimed needs for the child.  It seems to me that, in the context of interim orders, where the overall post-separation financial positions of the parties are yet to be determined at a trial, that there is merit in that attack.  I consider the wife’s claimed needs of $348 per week in respect of a child not yet two to be excessive. 

22. But, the husband has agreed to an order in respect of the child of $1200 per week.  By doing so, the husband cannot, in my view, be taken to be conceding that he has fulfilled his obligation, if any, to pay spousal maintenance. 

23. But, in light of the amount involved, when compared with the needs of a tiny child, it seems to me that the payment of that sum can be taken as meeting, on an interim basis, all payments associated with the child’s care, including, it might be noted, those amounts that would include the reasonable needs which the wife and the child share.

24. Thus, for example, in circumstances where the husband is paying $1200 a week and I consider reasonable accommodation costs to be $800 per week, he is meeting $400 per week of expenses associated with the child over and above the accommodation expenses necessary to house the child and the wife. 

25. I have already said that, in my view, the amounts so claimed by the wife are excessive.  Without descending into detail on an item by item basis, the husband might properly be seen as paying in the region of $150 per week over and above expenses that are reasonably necessary to meet the child’s reasonable day-to-day needs and accommodation.

26. Section 75(2)(na) of the Act requires the Court to take into account any child support payable in respect of a child where the spousal maintenance of the parent of that child is in issue.  It seems to me that I ought take into account that the husband, by paying $1200 per week in respect of the child pays thereby an amount which exceeds the child’s reasonable needs and that this ought be taken into account in a general way in assessing the wife’s maintenance pursuant to section 75(2)(o) of the Act.

27. Such capacity as the wife has to support herself comes from rental income from three properties which are negatively geared.  The husband argues that the expenses claimed by the wife in her affidavit and statement of financial circumstances productive of that negative gearing are unreasonable. 

28. Those expenses comprise, though, the mortgage and other essential payments in respect of the maintenance of those properties.  The husband argues through his solicitor that prudence would dictate that one or more of those properties should be sold in circumstances where the wife deposes that her current financial circumstances are that which she asserts. 

29. I do not consider that the wife should sell on an interim basis an asset that will form part of the broader inquiry into the financial positions of each of the parties in determining what might be a just and equitable settlement of property pursuant to section 79 of the Act and/or any orders made at a trial in respect of any spousal maintenance or departure from a child support assessment.

30. Nor, though, do I consider that the “negative income” received by the wife in that respect should be taken from, as it were, other income she receives so as to produce a net deficit result.  The income she receives from those rental properties ought, in my view, be regarded as zero.  Although I do not accept the submission of the husband that the payments are unreasonable, it seems to me that, on an interim basis, there exists the potential for the wife to make such arrangements as might be made with respect to those expenses (which are essentially expenses incurred in respect of the maintenance of investment properties) such that the income received from those rental properties should for maintenance purposes be regarded as zero. 

31. The wife deposes to having received in the past a Commonwealth benefit commonly known as the “baby bonus”.  She also deposes to receiving the family tax benefit in a relatively modest sum per week.  I asked her counsel whether it was contended that the receipt of that benefit was the receipt of a Commonwealth benefit within the meaning of section 75(3) of the Act, and he submitted that it was.  The solicitor for the husband does not in submissions contend to the contrary.  Again, it seems to me that the concession is properly made. 

32. It seems to me that it is such a Commonwealth benefit within the meaning of section 75(3) of the Act, and I propose to ignore it, as that subsection requires. 

33. That being the case, then, it seems to me that such capacity as the wife has to support herself and the child to the extent that the child is not otherwise supported in total by the payment to be made by the husband, is confined solely to the sum of $1200 a week to be provided by the husband.

34. In respect of the husband’s capacity to pay, both practitioners rely upon a report annexed to an affidavit of Ms K, who is an accountant.  Sensibly, the solicitor for the husband does not seek to rely upon those parts of the report which might be seen to offend the principles referred to, for example, in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. Primarily, what is relied upon is the assessment or, rather, the listing, of net funds drawn by the husband. Counsel for the wife relies upon it similarly.

35. The document reveals that the husband draws approximately $21,000 per week from the Skinner Family Trust.  Although the evidence relating to the broader financial circumstances of the parties is not read in evidence before me, I gather that the Skinner Family Trust is, or forms part of, the corporate/trust structure through which the husband conducts a business which preceded the relationship and which succeeds its breakdown.

36. It will be observed that the drawings of about $21,000 per week amount to about $1 million per year.  The breakdown of the $21,000 per week includes repayments on real property of $2300 per week, child support and other expenses paid by the husband in respect of a child of a different relationship of about $500 per week and personal living expenses of $2199 per week – that is to say over $100,000 per year. 

37. Counsel for the wife was anxious to point out that that listing also includes hire purchase payments in respect of an Aston Martin motor vehicle of $1350 per week or about $70,000 a year. 

38. I did not take the husband’s solicitor to seriously contend that the husband did not have a capacity to meet a spousal maintenance claim.  Such capacity is, in my view, clear from even a cursory look at the very broad outline of drawings available to him on a weekly basis and his admitted capacity to meet a payment of $1200 per week in respect of his child.

39. I find that the husband does have the capacity to make a payment of reasonable weekly needs of the wife in an amount as she claims or as might otherwise be ordered by me. 

40. In respect of that amount, it seems to me that I ought adopt the analysis earlier referred to as indicating that the total expenditure required by the wife to meet her weekly needs and those of the child, which should be seen in the manner to which I have earlier referred, total about $1600 a week.  She has access to, in the relevant sense, $1200 a week, leaving a shortfall in maintenance terms of $400 a week. 

41. I do, however, propose to take into account pursuant to section 75(2)(o) what, in my view, can plainly be seen to be an excess in the amount received by the wife by way of child support over and above the amounts required to house both she and the child and to meet the child’s reasonable weekly needs, and I do so in a general and non-mathematical way simply by reducing the amount payable by the husband to the wife as and by way of spousal maintenance to $350 per week, and I propose to so order. 

Costs Certificate

1. The solicitor for the husband seeks a Certificate pursuant to s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of costs thrown away resulting from unfortunate circumstances which saw the court rather suddenly unable to hear this matter through judicial illness.

2. I will give short reasons why I consider a Certificate appropriate so that the Attorney-General might properly consider such a request. 

3. The uncontroversial evidence before this Court is that, subsequent to the transfer of proceedings from the Federal Magistrates Court to this Court, a number of applications and cross-applications between the parties were due to be heard by the Court.  On the first of those occasions, Bell J was due to hear the matter on Tuesday 17 May 2011.  Bell J was unfortunately taken suddenly ill and was required to be admitted to hospital for a surgical procedure on the weekend of 14 and 15 May 2011. No other judge was available to hear the matter on short notice. Each of the parties had or were likely to have incurred costs in and about that proceeding which, through no fault of their own, had to be aborted by reason of the Judge’s illness.

4. On the adjourned date, I myself needed to undergo a surgical procedure in circumstances which, again, unfortunately led to the adjournment of the hearing at very short notice.  Once again, it is likely that the parties have incurred costs in respect of that hearing, which, through no fault of their own, did not proceed. 

5. Accordingly, it seems to me that in respect of each of those proceedings in the unfortunate but unavoidable circumstances that arose, a certificate ought be granted pursuant to section 10 of the Act by reason of those proceedings being rendered abortive due to the Judge in each case “becoming unable to continue with” the proceedings within the meaning of that section.

6. In respect of the Application for Costs of this hearing, I am minded to order that I deal with those matters in chambers without the necessity of the parties incurring yet further legal expenses through another appearance. But, I will not do that if one or other practitioner objects. 

7. On the acknowledgment of such that this is appropriate, then, I will indicate that the submissions so provided will be considered by me and orders made with reasons in chambers unless the solicitors or counsel for the wife submit otherwise, in which case oral submissions will be heard at a date and on a time to be advised. 

8. I will, subject to argument to the contrary, stay the enforcement of the order for costs made by me earlier today pending a determination of the application for costs foreshadowed by Mr Cooper in respect of which I’ve just made orders. 

9. I do not have the power prima facie to make an order with respect to the order made by Young J, because the Rules provide that any application for a stay ought be made in the first instance to him.  But, if I don’t get my orders and reasons out within 30 days, which I hope I will, then commonsense might prevail until such time as those orders issue.

10. I will additionally order that any application for maintenance and/or child support departure not otherwise dealt with by the orders made today be adjourned to the trial Judge.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 14 June 2011.

Associate: 

Date:  28 June 2011