Skipper and Skipper (No. 3)

[2018] FamCA 378

FAMILY COURT OF AUSTRALIA

SKIPPER & SKIPPER (NO. 3) [2018] FamCA 378

FAMILY LAW – SPOUSAL MAINTENANCE – Application granted – where Husband has capacity – where Wife has incapacity – Assessment of adequate spousal maintenance.

Family Law Act 1975 (Cth) s 72, 74, 79

APPLICANT: Ms Skipper

RESPONDENT: Mr Skipper

FILE NUMBER: SYC 8343 of 2016

DATE DELIVERED: 15 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 11 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Southern Waters Legal

COUNSEL FOR THE RESPONDENT: Mr Lloyd

SOLICITOR FOR THE RESPONDENT: D C Chambers & Associates

Orders

1. That pending further Order, pursuant to sections 72 and 74 of the Family Law Act 1975 (Cth) the Husband shall pay to the Wife by way of spousal maintenance an amount of $1,659 per week, and for the purposes of this order the Husband shall:

   (a)Pay the amount into the Wife’s bank account with B Bank, in the name of Ms Skipper, being BSB … and account number …71 or as otherwise directed in writing by the Wife; and

   (b)Do all things to ensure that the first payment of the Amount is made on the first Monday immediately following the date of Orders and continuing thereafter on Monday each week.

2. That by 18 May 2018 the Husband and Wife shall cause to be deducted from the B Bank Account ending …31 the amount of $84,223, to be paid into an account at the direction of the Wife, with the distribution of that amount to be characterised as a partial property distribution.

3. The husband’s application filed 3 May 2018 is otherwise dismissed.

4. The wife’s application filed 20 April 2018 is otherwise dismissed.

   IT IS NOTED THAT

5. The husband does not pursue costs.

6. The wife may make an application for costs in accordance with the Rules dependent upon advice received.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Skipper & Skipper (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8343 of 2016

Ms Skipper

Applicant

And

Mr Skipper

Respondent

Ex Tempore REASONS FOR JUDGMENT

1. Section 72 of the Family Law Act 1975 (Cth) (“the Act”) provides the conditions necessary for a spousal maintenance order to be made involving, firstly, a reasonable ability on the part of the payer. Here, reasonably, the husband concedes that he has that ability. Secondly, an inability on the part of the payee to support herself adequately for reasons including age or more broadly, any other adequate reason.

2. Here, in part, the wife points to her age.  She is now 66 years old.  She points to her health, although this is rebutted by reference to earlier affidavit material filed by her and identified by the husband which shows that her health constitutes little, if any, barrier to the work for which she is experientially qualified.  She points to her recent experience being in a family business which shows her capacity and shows why she is no longer there, due to marriage breakdown.  That recent experience may mean her recent experience is not so cogent for potential employers. 

3. She points to efforts to secure work since last before the Court (see exhibit W1 and following) which have been unsuccessful.  There is no clear actual rejection for the bulk of those, or it may be that some of them are still awaiting assessment, and there is almost no detail of what was provided to those potential employers other than her CV.

4. However, here the most significant matter is her age at an attempted re-entry onto the open market workforce.  At 66 it cannot be anticipated for her that there is a sufficient prospect of employment as to leave her with anything but an inability to support herself adequately.  That raises the obligation to pay spousal maintenance. 

5. The question remaining is one of what will be in an adequate manner, assessed in the light of the manner in which the parties have previously lived as being informative, but not definitive, of a reasonable current standard of living, to inform the question of what is inadequate in the circumstances.  The wife relies for this primarily on her Financial Statement. 

6. Before turning to that much has been made of the parties’ acquisitions of multiple exotic and expensive motor vehicles.  I am unable to determine that the car functions as an indicator of overall lifestyle or was an aberration inconsistent with their previous lifestyle.  In any event, the evidence does not sustain either that a prestige motor vehicle forms a part of the adequate support or would form an argument why the husband could not support the wife as he has obligations to support his prestige motor vehicle.  Properly, he does not make such an argument.  She does, but as indicated above, that argument fails. 

7. Turning to the balance of the amount sought by the wife, it is sought in the context of the wife having the sole occupancy of the former matrimonial home.  It should be observed that the justification for the amounts sought by the wife received only cursory attention in the hearing, including a global challenge to the expenses claimed.  Of the expenses there seems to be no challenge to the expenses in the household paid to date by the husband in the business, which appear to total $380. 

8. There is a minimum credit card payment asserted by the wife of $105.  That appears to include a portion of capital repayment.  I note this because the debt claimed by her on that credit card is $20,000 and the payments at the rate that she asserts would equate to payment of $20,000 across the year.  In the absence of a breakdown as to a capital component and noncapital component, where the onus rests upon the wife, I am not prepared to include into the mix this amount as the evidence does not enable me to determine what part is a support component.  That is, there could be a component of that amount which is a support component but in the absence of further support I am not satisfied that they are.

9. I turn then to Part N of the wife's Financial Statement, again noting an absence of close scrutiny of that.  I do not accept that dog grooming at $50 per week, gifts of $40 a week, entertainment and hobbies at $65 a week, nor, at present, repairs of furnishings and appliances at the like of $25 a week are necessary components of adequate support.  They total $180 per week.  I do note that the wife will need to pay for a car which she seems to reasonably estimate at $129 per week. 

10. The wife seeks a structure that the husband pay amounts to her for her to then pay utilities and the like for the household.  Given the husband's odd manner of compliance as set out in the wife's affidavit, regarding payments to the wife, such a scheme is justified. 

11. These leave maintenance as sought by the wife reliant on the wife's Financial Statement with the above limitations as an amount of $1,815 plus $129 for the motor vehicle, less the $105 for minimum credit card payment, less $180 which would leave a weekly amount of $1,659. 

12. This then leaves the question of interim distribution.  The default position is that there is a preference for one exercise of the s 79 powers rather than a series of sequential orders.  Here already there is one partial order in place which has seen a distribution of $200,000 to the wife, apparently largely under justification of legal fees.  Without substantive progress being made in the case, unless that progress has of course been made behind the scenes and is not apparent to the Court, that amount has been expended.  There is now an assertion that a further amount in excess of $160,000 is required in respect of legal fees.  Despite the breakdown given by the wife's lawyers there is little reason to accept that that be so, although I concede perhaps it will be.

13. It is also the case that there is absent any evidence that representation will be withdrawn if the wife is not able to pay as she goes.  I noted, as I noted in the hearing, that it is not necessary that there be evidence that representation will be withdrawn, but such a position may add weight to the need for a fragmented exercise of the s 79 power.  These matters in this case where there is already an exercise of the power are not sufficient on their own to justify a further exercise in the manner sought by the wife. 

14. However, one matter does call for some exercise of the power and that is the change in circumstances in respect of the wife having access to a motor vehicle.  The wife sought to have access to the motor vehicle under two heads of power, the maintenance power and under s 79.  The orders that she seeks are more akin to an adjustment to acquire property than under the maintenance power and I will deal with them under that provision.

15. It is appropriate that there be some provision so that she might have access to a motor vehicle.  The wife sought that that provision be made out of the husband's cash reserves, whilst the husband sought that it be dealt with from the sale of the home that is sought by the wife in the final proceedings.  Between the parties there was no issue but that $160,000 would not traverse beyond the ultimate entitlement, that is, each party conceded that there could be a distribution without trampling on either party's ultimate entitlement but each resisted the manner of trespass on their own claims as to the full.  It seems more appropriate that any funds be drawn from what both treat as joint funds in their Financial Statements and which orders already provide are open for their drawing against if they can come to an agreement. 

16. They hold approximately $160,000 in a joint account.  Each claims a right to half and inherently acknowledges the other’s right.  If access is made to such sums, then there is no change to the current property balance between the parties and in reality, no real adjustment given their representations as to their entitlements to the amount held in that sum.  That is the preferred source from which it should be taken.  I have not heard from the parties directly as to what they say about whether the amount should be taken from that source and I have given them the opportunity to address me now. 

17. (Note the parties were heard on this matter and expressed no opposition.)

18. The wife will be permitted access to her component of those funds.  That will mean there is no need to make some other sort of allowance for the motor vehicle.  Orders will therefore be made to support the parties’ current position in respect of the wife's ownership of that portion of the funds.  That will deal with the wife's interim application.  Her applications will be refused other than for this release and the order for spousal maintenance orders.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 May 2018.

Associate: 

Date:  29 May 2018