Stopford Malloy and Malloy - [2016] FamCA 289

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY

[2016] FamCA 289

FAMILY LAW – SPOUSAL MAINTENANCE – where the husband seeks that the amount be reduced – where the Court is satisfied that the wife has established a need for payment – where consideration is given to the husband’s capacity to pay and the parties change in circumstances – where the spousal maintenance provisions previously ordered are continued.

Family Law Act 1975 (Cth) s 82
APPLICANT:	Ms Stopford Malloy

RESPONDENT:

Mr Malloy

FILE NUMBER:

ADC

2595

2015

DATE DELIVERED:

22 April 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

22 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wells QC
(with Mr McGinn)

SOLICITOR FOR THE APPLICANT:

Piper Alderman

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

Howe Jenkin

Orders

Leave is granted for the release of the documents contained in the subpoena material to Ms F such copies to be provided by the wife’s solicitors within two [2] working days SAVE AND EXCEPT for the confidential material not to be released to either party or the family consultant at this stage.
Further consideration of the Application in a Case filed on 21 March 2016 by the wife is adjourned to Wednesday 27 July 2016 at 9.15 am before the Honourable Justice Dawe allowing one [1] hour.
Any affidavit material upon which either party seeks to rely to be filed and served by 4.00 pm on 22 July 2016.
Paragraph 1.1 of the orders of 19 October 2015 is continued.
Paragraph 1.2 of the orders made 19 October 2015 be varied by inserting the following in lieu of the present order:
that the sum of SIX HUNDRED AND FIFTY DOLLARS [$650.00] per week, the first payment of which is to be paid and received as from Friday 22 April 2016, such amount to be paid to an account nominated by the wife’s solicitors in writing.
The Application in a Case filed by the husband on 18 March 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stopford Malloy & Malloy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2595 of 2015

Ms Stopford Malloy

Applicant

And

Mr Malloy

Respondent

EX TEMPORE EASONS FOR JUDGMENT

In relation to the interim matters which are before me this morning, I have dealt with the matters concerning the children’s issues. They are adjourned awaiting the outcome of the family consultant’s report and the return of the husband from an overseas trip.
The other matter to be dealt with on an interim basis is the question of the spouse maintenance orders which are now being sought.
On 19 October 2015, I made orders by consent which, inter alia, provided for the husband to pay the wife an interim spousal maintenance sum of $2000 per week, the first payment to be on 23 October 2015, and the sum of $650 per week in such instalments or multiples as the lease of any property which the wife shall rent, together with any amount of bond by the wife, such payment to be made to the wife’s landlord or her agent as and when they fall due and payable under the lease or rental agreement.
There was subsequently, in that order, related matters concerning finances and in relation to the children’s orders.
The orders which are now being sought by the husband in his Application in a Case filed in March 2016 are that the orders be significantly reduced to provide for payment of spouse maintenance of a sum which, in total, would be $6100 a month, together with the mortgage to NAB, which would be an equivalent of $7400 per month. The wife seeks to continue the amount that was part of the consent orders, which total somewhere in the region of $10000 or $11000 per month.
The first issue that needs to be determined is the question of whether there is a sufficient basis established pursuant to s 82 which would provide for variation of the orders and whether there had been a sufficient change in circumstances.
The history of the events since October 2015 is set out in the numerous affidavits filed by the parties, including that there was a brief period of reconciliation of the parties shortly after the orders in October 2015, but that reconciliation ceased either in late January or early February 2016. That is a minor change in circumstances. The other change in circumstance is that, very recently, the wife has ceased to reside with her family and has moved with the child to a property which she owns but which is subject to ongoing mortgage which was previously covered by the rental of that property.
The circumstances in relation to the husband’s financial arrangements are in dispute. He claims that he does work for his father and his father then provides him with living money but that he is technically unemployed. His Financial Statement indicates expenses on a weekly basis in excess of $17,000 but no income.
The wife has a capacity to earn some income but that is limited by her health issues as alleged and the need to provide for the very young child of the parties.
I am satisfied that the wife has established a need for the payment of spouse maintenance and the amount which she seeks for spouse maintenance is covered by her expenses which are in excess of $3800 per week.
I also take into account, as required, the previous standard of living enjoyed by the parties and the right of the mother to continue to maintain a reasonable lifestyle, taking into account that history.
The difficulty is (in establishing the husband’s capacity to pay) what his income is. He says his income is nil. He maintains that the amount he receives is at the behest of his father, as his father sees fit. There is no affidavit evidence directly from the father as to the father’s willingness to continue to make the payments in accordance with the consent order. I emphasise it was a “consent order” made in October 2015.
The Court is required on the interim basis to exercise its discretion pursuant to the provisions of the Family Law Act 1975 (Cth) (“the Act”) for spouse maintenance on the material which is before it which requires a finding that would take into account the husband’s capacity to pay. The amount which the husband is offering is significantly less than the amount which would provide for the wife to maintain a reasonable standard of living compared to her previous standard of living. This would significantly impact upon the standard of living, therefore, that the father’s child will enjoy due to what he asserts is his lack of income.
I take into account that since the consent order, there has been a reconciliation and a further separation. The change in circumstances of the wife moving to her own property, although not significant in the determination of the husband’s financial circumstances, does require the consideration of the matters, particularly now that the consent order is opposed by the husband.
An order was made on 19 October 2015 which provided for the husband to pay the wife the sum of $2000 per week. There has not been sufficient material put to me to indicate why that order should be altered. The payment of the $650 per week for instalments by way of rent is sought by the wife to be paid to her now to enable her to meet the mortgage payments. I am satisfied that there are sufficient bases for that variation to be made.
Therefore, the orders to be made by way of interim maintenance will be for the orders sought in terms of the response to the Application in a Case sought by the wife, namely, that paragraph 1.2 be varied to insert the words “that the sum of $650 per week, the first payment of which is to be paid and received as and from Friday, 22 April 2016, such amount to be paid to an account nominated by the wife’s solicitors in writing” is appropriate.
The spouse maintenance provisions of paragraph 1.1 of the order of 19 October 2015 are continued.
I have not heard submissions in relation to the provision of security of the spouse maintenance and I do not see this as necessary. If the husband does not comply with orders of the Court, then appropriate adjustments will, no doubt, be made and enforcement proceedings can be commenced.
The applications so far as they relate to interim spouse maintenance are dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 April 2016.

Associate:

Date: 2 May 2016