STEFANOVSKI & STEFANOVSKI

[2011] FamCA 857

FAMILY COURT OF AUSTRALIA

STEFANOVSKI & STEFANOVSKI [2011] FamCA 857

FAMILY LAW – SPOUSAL MAINTENANCE – Where Wife has established threshold requirement– Husband has the capacity to meet the Wife’s need in interim period pending judgment in substantive proceedings

APPLICANT: Ms Stefanovski

RESPONDENT: Mr Stefanovski

FILE NUMBER: SYF 4278 of 2006

DATE DELIVERED: 3 November 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Kent J

HEARING DATE: 3 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

ADVOCATE FOR THE RESPONDENT: Mr Stefanovski in person

Orders

1. That until further Order the husband pay to the wife as and by way of spousal maintenance the sum of $610.00 per week, the first of such payments to be made tomorrow, 4 November 2011 by way of deposit to the Trust Account of the solicitors for the wife and weekly thereafter.

2. I otherwise reserve my decision in respect of the substantive applications before me.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stefanovski & Stefanovski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4278 of 2006

Ms Stefanovski

Applicant

And

Mr Stefanovski

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I propose to reserve my decision so far as the property orders sought are concerned.  Pending that decision there is an application by the Wife that she receive interim spousal maintenance.

2. Section 72 of the Family Law Act 1975 (Cth) (“the Act”) expresses the statutory right of a spouse to maintenance and the statutory liability of a party to a marriage to maintain the other party to the extent that the first mentioned party is reasonably able to do so. In terms of an application for spousal maintenance, the threshold requirement is that the party seeking maintenance must establish a need for maintenance. Having established that need, the enquiry is directed to the capacity of the other spouse to meet that need.

3. Section 74 of the Act sets out the powers of the Court in spousal maintenance proceedings. In particular, subsection (1) provides that in proceedings with respect to the maintenance of the party to the marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this part.

4. I am obliged to take into account the matters set out in s 75 of the Act in relation to spousal maintenance. In terms of step 1, which is the threshold requirement, the Wife has provided evidence before me setting out her reasonable weekly needs at $610.00 per week.

5. The Husband, in the course of the proceedings before me, during his cross-examination, essentially agreed that those were in fact the reasonable needs of the Wife.  He had the opportunity to cross-examine the Wife and did not seek to challenge her with respect to her needs and as I have mentioned, in his own cross-examination about the topic, effectively conceded that the Wife had established a need to spousal maintenance in the quantum contended for by the Wife, namely $610.00.

6. Thus I find that the Wife establishes the threshold requirement under Part VIII.

7. Turning then to the Husband’s capacity to pay maintenance is concerned the principle sources of evidence I have in terms of analysing the Husband’s capacity are his Financial Statement, provided for the purpose of these proceedings, but also Exhibit 4 being the 2010 Financial Statements and Income Tax Returns for his company, B Pty Ltd.

8. By reference to those documents, it can be seen that on his existing Financial Statement the Husband claimed total average weekly income of $1,419.00 and total personal expenditure of $1,176.00.  Those figures are somewhat distorted in that the income figure reflects, by reference to the Husband’s tax return for the year, some receipt of rental income, with respect to a property now sold, and some other items. 

9. But it is also distorted with respect to the expenses claimed.  For example, a claimed amount of about of $375.00 a week paid to one Ms M as rent paid to her.  The evidence before me establishes from Exhibit 4, namely the Financial Statement of B Pty Ltd, that payments of approximately $33,000.00 per annum ($655.00 per week) are made from the company direct to Ms M (with whom the Husband lives) so there is no separate claim payable by the Husband in his own personal right and he confirmed that during the course of his cross-examination. 

10. On my analysis of the figures, it would seem that by reference to the Husband’s 2010 Taxation Return and also by reference to the Financial Statements of B Pty Ltd, the Husband receives salary and wages of the gross of $48,828.00, in addition, Director’s Fees of $16,880.00, plus he is able to make contributions to superannuation of $14,043.00, being a total of $79,751.00.  That is on the basis of his 2010 Financial Year result.

11. The Husband contends before me that his financial circumstances for the future are at some risk.  He submits that by reference to the document which has become Exhibit 12 before me, namely correspondence from the firm known as V Business, to which the Husband’s company subcontracts, there is a risk of his own earnings declining by reference to the loss by V Business of the contract with Bank 1 of November of this year.  Whilst the correspondence in Exhibit 12 indeed confirms that the contract with Bank 1 will not be retained by V Business, that same correspondence sets out what may be described as a very positive outlook for the company V Business.  Express reference is made in that document as follows:

    “Rest assured your positions within the company are safe.  We are close to securing another opportunity in a similar market sector that will keep us all busy for year end and beyond.”

12. There is also a further reference in that Exhibit

    “On a positive note, the year has been good from the perspective of business development.  This is largely due to the amazing referrals we receive from our current clients, which is a direct result of your combined efforts.”

13. The correspondence goes on to set out the identity of a number of substantial firms including international companies in respect to which the company has said to have secured contractual arrangements.  The letter concludes:

    “We are still waiting on a few more results to fall our way prior to year end that will cap off a bloody good year for the company.”

14. It seems to me that I cannot be satisfied on Exhibit 12, being evidence tendered by the Husband in the case before me, that the Husband establishes a likelihood of a decline in his company’s earnings.  The company is in fact, in relative terms, somewhat in its infancy.  The Husband commenced the company in early 2009 on the evidence before me, so the 2010 Financial Year results represent a company or business in its infancy in the sense of the period of time it has been operating.

15. In those circumstances I find that in the hopefully short period between now and judgment in the substantive proceedings the Husband has the capacity to pay maintenance with respect to the wife and his capacity is not less than her need, namely the sum of $610.00 per week. 

16. I therefore make an order that until further order the Husband pay to the Wife as and by way of spousal maintenance the sum of $610.00 per week, the first of such payments to be made tomorrow, 4 November 2011 by way of deposit to the trust account of the solicitors for the Wife and weekly thereafter. 

17. I otherwise reserve my decision with respect to the substantive applications before me. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 3 November 2011.

Associate:     

Date:              3 November 2011