Southers and Southers (No 2)

[2016] FamCA 344

FAMILY COURT OF AUSTRALIA

SOUTHERS & SOUTHERS (NO 2) [2016] FamCA 344

FAMILY LAW – INTERIM SPOUSE MAINTENANCE – Application by the wife for urgent spouse maintenance – Where the wife has demonstrated an immediate need for financial assistance – Where the Court finds that the husband has a capacity to pay – Order for temporary spouse maintenance pending further order made pursuant to s 77 of the Family Law Act 1975 (Cth).

Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth) ss 72, 74, 75, 77

APPLICANT: Ms Southers

RESPONDENT: Mr Southers

FILE NUMBER: SYC 689 of 2015

DATE DELIVERED: 15 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 8 and 10 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self

SOLICITOR FOR THE RESPONDENT: Ms Michaels

Orders

1. Pending further Order and pursuant to s 77 of the Family Law Act 1975 (Cth), the husband pay to the wife’s bank account (as nominated by her) the sum of $2,000 per calendar month, such payment to be made on the nineteenth day of each calendar month.

2. Each party have liberty to apply to vary or set aside the s 77 Order made herein upon giving 14 days’ notice to the other party and to the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Southers & Southers (No 2) has been approved by the Chief Justice pursuant to s 21(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 689 of 2015

Ms Southers

Applicant

And

Mr Southers

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application in a Case filed by the applicant wife on 20 January 2016.  The wife is currently self-represented. The wife’s application seeks orders for departure from Child Support Assessment together with urgent spouse maintenance. Further, an injunction is sought against the husband disposing of the AMP Growth Bond accounts.  Further orders are sought requiring the husband to make payments relative to the children’s activities. 

2. The matter is docketed before Justice Loughnan, however, he is on leave and not available to hear the Application at this time.  The wife says the Application is urgent as she will not have sufficient funds to meet next month’s rental on the accommodation which she occupies with the children unless she receives urgent spouse maintenance.

3. By his Response to an Application in a Case filed 8 February 2016 the husband (represented before me) seeks the wife’s Application be dismissed.  He also seeks an order in relation to the wife providing her Centrelink Childcare Rebate number to a childcare facility which is attended by D, the parties’ child.

4. In the normal course determination of any child support departure application would be required to be determined before a spouse maintenance application. This is because s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), which has application to the determination of a spouse maintenance application, requires the Court have regard, pursuant to sub-section (na), to “any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for the child of the marriage.”

5. Given the circumstances of the financial position put by the wife, seeking that her urgent spouse maintenance Application needs to be determined forthwith, and given that no application has been made by the wife to the Child Support Registrar for a departure from the administrative assessment currently in place, I propose to deal with the s 77 Application sought by the wife and make it continue either until further order or until there has been any determination of the wife’s child support departure application.

6. No objection was made by the husband’s legal representative to the Court determining the s 77 Application of the wife prior to determining any departure application under the Child Support (Assessment) Act 1989 (Cth).

7. In support of her Application in a Case the wife also filed in the Court on 15 January 2016 an Amended Initiating Application.  By that Application she sought final orders in identical terms to those now sought in her Application in a Case.

8. In support of her Application in a Case the wife relies on her affidavit sworn 15 January 2016 and filed 20 January 2016, together with her Financial Statement sworn on 15 January 2016.  She also tendered documents evidencing her applications for employment and documents which she said evidenced a capacity of the husband to meet a spouse maintenance order if made in her favour.

9. The husband filed a Response to the wife’s Application in a Case on 8 February 2016.  He supported that Response with an affidavit filed 8 February 2016 and a Financial Statement filed the same day. 

Evidence and Submissions

1. The Initiating Application filed by the wife on 9 February 2015 in the Federal Circuit Court alleged cohabitation commencing in December 2004, marriage in 2007 and separation on 1 January 2014.  There are three children of the marriage:  B, born in 2008, C, born in 2009, and D, born in 2012.  The children live with the wife at Suburb E in rented accommodation for which she pays $585 per week. The children spend time with the husband. The husband resides in the former matrimonial home at Suburb F for which he pays rent of $930 a week.  The disparity in this cost forms part of the conflict between the parents in respect of financial matters.  The children attend school at Suburb G which the wife says involves her in extensive travel, and she provides evidence as to the cost to her of that travel. 

2. The wife’s financial circumstances are set out in her Financial Statement filed 15 January 2016.  That discloses an income of $1,343.43 per week.  That is made up in part by Government benefits and child support, the child support amounting to $817.27 per week.  The wife’s expenses amount to $2,554.

3. In determining a spouse maintenance application the Court is required, pursuant to s 75(3) of the Act, to disregard entitlement of a party, whose maintenance is under consideration, to any income tested pension allowance or benefit. Consequently for the purpose of determining this Application the wife’s income is the amount of her child support received in the sum of $817.27. The wife therefore, prima facie, establishes a need for spouse maintenance. The extent of that need is determined by considering the amount claimed for support of herself in Part N of her Financial Statement (namely $504) together with the cost of expenses specified in Part G, namely $910, together with the expenses of the children which exceed the amount of child support paid by the husband and which therefore needs to be met by the wife. The amount of expenditure for the children on a weekly basis claimed by the wife is $1,080 as against which she receives child support of $817.27.

4. Even if the additional costs of the children are ignored, the wife has a need for spouse maintenance established by her Financial Statement in the sum of $1,414 per week. 

5. In relation to the wife’s Financial Statement the husband in his submissions challenged the amount claimed by the wife for children’s activities and the cost of travel claimed by the wife for the children.  The travel costs were explained by the wife in her submission as arising because of the distance between her residence and the school which she claimed the husband insisted the children continue to attend. 

6. The husband in his Financial Statement sworn 5 February 2016 discloses an income of $5,539 per week and expenses of $5,852 per week.  The wife has challenged a number of the items of expenditure which the husband includes in his Financial Statement including, and perhaps most significantly, the amount of rental he pays of $930 per week.  The wife says that the residence occupied by the husband is a four bedroom home at Suburb F which had been occupied by the parties prior to separation. 

7. Significantly, the wife challenges the husband’s statement of income.

8. The power of the Court to make an order for spouse maintenance originates with s 72 and s 74 of the Act. The liability of a party to maintain another party to a marriage arises where the Court is satisfied that the claiming party is unable to support herself or himself adequately by reason of having the care and control of children of the marriage who have not attained the age of 18 years, by reason of physical or mental incapacity for appropriate gainful employment or for any other adequate reason where the relevant matters referred to s 75(2) of the Act have also been considered.

9. Section 77 of the Act (under which the wife seeks her urgent spouse maintenance order) provides that the Court may make a temporary order for the payment of spouse maintenance where there is demonstrated an immediate need for financial assistance yet it is not possible to immediately determine what order, if any, should be made.

10. In this case there are three children who are primarily cared for by the wife.  All three are under the age of 18 years.  Further, the wife has provided evidence of her efforts to obtain employment.  She has tendered a number of documents which specify the applications she has made for employment.  She last attempted to return to professional employment in February 2014 and was unsuccessful in October 2014 in obtaining that employment.  She claims she needs to obtain further skills to return to the field of employment in which she was previously engaged.  Further, following the birth of the parties’ third child, she says the industry has moved on and appears to demand long hours and has a “youthful” culture.

11. The wife has attempted to earn income through acquiring a business. She is trying to build up the business which principally operates, she says, in the early hours of the morning. She says she has been unable to make that business profitable. Part of the cost to the wife of establishing the business is the cost of child care in the early hours of the school week, at a time before she transports them to their school in the north of Sydney.

12. For the purposes of this Application under consideration I am satisfied that the wife does have a need for support in that she is unable to support herself adequately by reason of having the care and control of the children of the marriage, together with the requirement for obtaining additional skills before she will reasonably be able to be considered for employment in the area of employment for which she holds experience.  She has not worked in that industry since April 2008 following the birth of the parties’ first child.

13. In her affidavit sworn 19 January 2016 the wife in paragraph 10 set out those expenses which the husband had undertaken to pay on her behalf in an email dated 15 January 2015.  At that time the husband was caring for the children five nights a fortnight.  Since that time the nights that the children spend with the husband, during school term, have been reduced.

14. The wife has obtained employment as a personal trainer in that she purchased franchise in February 2015.   

15. In October 2015 the Child Support Agency advised the wife that the husband objected to the child support assessment, however, the objection was not successful.  In October 2015 the husband wrote to the wife and advised her that he would no longer be able to maintain the $5,000 monthly payment as he had undertaken to do in January 2015.

16. The husband did make his child support payment on 15 January 2015 as required.  It appears that the Child Support Agency was contacted by the husband in January 2015 claiming that a change in the care arrangements of the children had occurred and that this affected the amount of child support he would be required to pay.

17. In December 2015 the wife had major abdominal surgery and that impacted upon her ability to earn income at that time.   

18. The wife spends approximately $1,028 per month in fuel, tolls and direct costs involved in delivering the children to the school at Suburb G.

19. Exhibit W2 is a series of documents produced by the husband under A Notice to Produce issued by the wife.  Attached to those documents is a summary and submission by the wife urging the Court to draw particular conclusions.  The category of documents consists of copies of pay statements issued monthly to the husband.  These commence with the pay period 1 January 2015 and showed the annual salary of $250,000.  In addition, the employer contribution for superannuation made on behalf of the husband for the six month period to 1 January 2015 was $13,854. 

20. On 11 March 2015 an unscheduled payment of $63,000 expressed as “annual performance incentive” was paid to the husband.  That payment, on the face of it, was in addition to his annual salary.  Following upon that payment an additional contribution to the husband’s superannuation was made in the sum of $5,985. 

21. In the pay period commencing 1 April 2015 the husband’s annual salary was increased to $263,000.  As at 30 June 2015 the husband’s gross payments received amounted to $316,249.  In addition, the employer contribution to his superannuation was $30,043.  His annual salary together with employer contributions for superannuation therefore added to $346,292 averaging $6,659 per week for that 12 month period.  If the superannuation contributions are ignored the husband had a gross weekly salary over the 12 month period of $6,081 per week.  The wife argues that if the husband’s annual income of $263,000 continues for the balance of the financial year then the husband’s true estimated weekly income should be in the order of $6,269 per week. That sum includes a “incentive bonus” of the same amount as last year, namely $63,000. There is significant validity in such a submission.

22. The wife in her additional submissions, based on the material contained in the husband’s Financial Statement and in the documents produced under Exhibit W2, submits that there is at least a capacity for the husband to meet a payment of $1,807 per month as urgent spouse maintenance.

23. Part of the record produced in Exhibit W2 includes the husband’s Westpac Altitude Black World MasterCard statements.  These statements by and large do not show expenditure which suggests an extravagant lifestyle.  There are some expenditures such as 5 October 2015, $680 spent at the Hilton Sydney Australia and other similar types of entries which suggest the husband has the capacity to entertain himself at a level which is not available to the wife.  Of significance, however, is the payment of legal costs which illustrate from about April 2015 payments in excess of $55,000 made by the husband to his lawyers. 

24. The wife in her Application seeks a payment of interim spousal maintenance in the sum of $3,000 per month.  In Exhibit W2 the wife submits that there is a clear capacity for the husband to meet a payment of $1,807 per month by way of interim spouse maintenance with the expenses taken into account as he has set out in his Financial Statement.

Discussion

1. The Act requires the Court to take into account, to the extent that they are relevant, matters specified in s 75 of the Act. Having regard to those matters I make the following findings, to the extent that those findings are capable of being made in the confines of an urgent spouse maintenance Application hearing, which must, of necessity, be very limited with no real ability to test evidence.

2. There has been a misrepresentation by the husband in his Financial Statement of his true income position.  It is not appropriate at this time to determine whether that was a conscious attempt to deceive or an honest attempt to inform the Court of a current income position.  It is not possible to determine.  Should it transpire in the fullness of time that a Court concludes the former position was intended by the husband he should be on notice that serious consequences may flow as a result of any such determination. 

3. The parties are roughly the same age in that they were both born in 1979.  There are three children of the marriage born respectively in 2008, 2009 and 2012.  Both parties appear to be in good health with the wife now working, however, she did undergo a medical procedure in December 2015. 

4. Both parties have set out, under oath, their financial circumstances in their Financial Statements.  The position of the husband as stated in his Financial Statement has now been further informed as a result of documents tendered by the wife and supplied to her pursuant to a Notice to Produce she issued for the hearing.

5. The current arrangements for the care of the children see them spending the majority of their time in the care of the wife, however, having substantial significant time with the husband.

6. Each of the parties has set out in their Financial Statements their costs for supporting themselves and the costs of supporting the children.

7. The wife’s case is that there is a disproportionate standard of living being enjoyed by the husband as opposed to the wife following the separation.  In particular, she emphases the differentiation in the accommodation that each has available.  The husband resides in the former matrimonial home in respect of which he pays $930 per week rental.  The wife resides in a property at Suburb H in respect of which she pays a rental of $585 per week.  There is a considerable difference in size and amenity between each of the premises.  The property occupied by the husband is a four bedroom home.  The wife resides in an apartment for which she pays a rental of $585 per week.  That apartment is two bedrooms.  The wife has acquired a franchise and is developing the business.  At the moment the business is not profitable, however, there is clearly an intention on the wife’s part that it becomes profitable.  The payment of maintenance will enable her to develop that business so as to contribute to her own support from her own earnings.

8. The wife’s earning capacity has been affected by the duration of the marriage and in particular, her care for the children during the time they were infants.  During that period she effectively lost her place in the industry which had been her employer before the birth of the children.

9. The wife is primary care giver to the children, the youngest of whom is three, and there is a clear need for her to provide care and supervision during the majority of the traditional working week.

10. The husband is paying child support, albeit that the wife complains the payments in recent times have been late.  The child support she receives is $817.27 per week (see her Financial Statement).  The husband in his Financial Statement professes that he pays only $621 per week as child support.

11. Section 75(3) requires that when considering an application for spouse maintenance the Court disregard any income tested pension allowance or benefit which the applicant for spouse maintenance may be entitled to. As a consequence the Court must disregard the parenting pension and family tax benefit received by the wife on a weekly basis which totals $526.

Determination

1. Taking into account all the matters referred to above and considering that the order sought by the wife is pursuant to s 77 of the Act, therefore a temporary maintenance order, I conclude that the husband has a capacity to pay $2,000 per month by way of interim spouse maintenance, pending any further determination. I propose to make orders to that effect.

2. Should there be a variation to the amount of child support payable by the husband to the wife, such variation being significant, or should there be any other significant change in the financial circumstances of either of the parties pending the determination of a spouse maintenance application pursuant to s 74 of the Act each party will have leave to apply to vary the s 77 of the Act Order made herein.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 15 February 2016

Associate: 

Date:  15 February 2016