Stuart and Bland

[2013] FamCA 1159

FAMILY COURT OF AUSTRALIA

STUART & BLAND [2013] FamCA 1159

FAMILY LAW – ORDERS – Variation – Variation of spousal maintenance order – Where circumstances of the wife have changed in that previously unknown earnings have now been ascertained – Where change in circumstances sufficient to enliven the jurisdiction to vary the order – Where Court ordered a reduction in the spousal maintenance payable from the date of the order by the sum of $1000 based upon demonstrated earnings of the wife since the date of the order – Where Court noted there was a prospective risk that the wife will not be able to secure the same level of employment going forward – Where Court reduced the amount of spousal maintenance payable by $500 going forward.

Family Law Act 1975 (Cth) s 83(2)

APPLICANT: Ms Stuart

RESPONDENT: Mr Bland

FILE NUMBER: TVC 218 of 2013

DATE DELIVERED: 6 September 2013

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 6 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Fellows

SOLICITOR FOR THE RESPONDENT: Mr. Logan

Orders

1. There will be a variation of the Order of 26 June 2013 decreasing the amount payable under it up until 6 September 2013 to the figure of $750 per week, but varying going forward from 6 September 2013 in the sum of $1250 per week.  

2. Costs of today be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stuart & Bland 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 TOWNSVILLE

FILE NUMBER: TVC 218 of 2013

Ms Stuart

Applicant

And

Mr Bland

Respondent

REASONS FOR JUDGMENT

1. On 18 June 2013 I delivered my reasons for ordering a payment of spouse maintenance by the husband to the wife in these proceedings comprising of a weekly payment of $1750 together with obligations to pay the wife’s rent of $800, her health insurance premium, and 100 per cent of her liability to the Commonwealth Bank in respect of a property at A Street, and 50 per cent of the parties’ liabilities to the Commonwealth Bank in relation to other properties.  At the time that I made those – I delivered those reasons, the evidence did not permit me to attribute any dollar value to the income or likely income that would be earned by the wife during the duration of the order that was subsequently made.  Therefore, absent that evidence, the Court was in a position where the result was that the husband would assume the total responsibility for the reasonable expenses of the wife.

2. Since then, however, the position has clarified.  In her affidavit filed 3 September 2013 the wife has detailed the earnings which she has been able to achieve, and annexed to that affidavit some billing records for her pertaining to periods of time which pre-dated my reasons and orders, and some periods of time which post-dated those reasons and orders.  They demonstrate that in April the wife was able to bill $1715.95 worth of professional services.  In the month of May the billings were $1626.86.  In the month of June it was a figure of $1252.15.  In the month of July it was a figure of three thousand – I beg your pardon, I’ve been using the wrong figures.

3. In the month of April the payments were – the amounts billed were $4731.40.  In the month of May the billings were $4063.95.  In the month of June the billings were $4359.80.  In the month of July they were $5101.83.  The reality, it appears, of professional practice is that although the amounts may be billed in a month, it may be some months before they trickle through.  Even accepting that, the wife has clearly since June received not inconsiderable sums of money by way of payment of the work which she did both for months prior to June and seemingly for months after June. 

4. In his affidavit filed by leave today, the husband has undertaken a calculation by reference to documents provided to him as to what the earnings of the wife ought to have been during the periods after the reasons were delivered.  They show that in the month of June there was an entitlement to income of $682.34 since the date of the reasons.  In the month of July there was an entitlement to $10,676.23.  In the month of August, an entitlement to $5800.81.  It is not possible to ascertain with any real accuracy the precise amounts which the wife has earned; suffice to say that it appears as though she has a capacity to earn an income in the vicinity of about $1000 per week working on a part-time basis. 

5. However, the situation is not as clear as it might be, because two of the positions which the wife has been engaged in are no longer available to her, although it appears as though one of those was not remunerated.  Therefore although one can with a degree of certainty look at what the wife has earned since the date of the June reasons and orders, looking forward, the situation is not so clear.  On the one hand, the wife may be able to secure the same level of income that she has since the orders, but that is not guaranteed.  There is the potential for injustice to both parties. 

6. If I were to order a sum and thereafter the wife’s income were to be at the same level or higher than it has been in the past, then it may be that the husband is paying too much maintenance.  Conversely, if I were to reduce the amount by reference to a notional earnings, and they were not to come to fruition, the wife’s expenses would not be met.  However, I am fortified by the fact that the authorities condone the Court approaching such matters with a relatively broad brush, certainly on an interim basis.  By reference to section 83(2) the Act provides that:

   A Court shall not make an order increasing or decreasing an amount to be paid under a maintenance order unless it is satisfied of certain things. 

7. They include, in subparagraph (a)(i) that:

   The circumstances of a person for whose benefit the order was made have so changed as to justify the making of the order.

8. In my view, the circumstances of Ms Stuart here have changed in that previously unknown earnings have now been able to be ascertained, and hence that change of circumstance is sufficient to enliven the jurisdiction to vary the order.  As I’ve already adverted to, however, the difficulty is in ascertaining the extent of the appropriate variation.  In my view, the task of the Court is to try and work a balance between on the one hand the evidence of what she has earned in the past, and on the other hand the prospect that she will be able to earn that going forward. 

9. Mr Fellows, who appeared as counsel for the husband, suggested that the appropriate course was to decrease the amount of maintenance that was payable from the date of the order by the sum of $1000 based upon the demonstrated earnings of the wife since the date of the order.  In my view, that is an appropriate response to the change of circumstances of the wife.  There will therefore be an order decreasing the amount of maintenance that was payable under the orders made in June, reducing the sum payable from $1750 per week to $750.00 per week.  However, that does not deal with the prospective risk that the wife will not be able to secure the same level of employment going forward. 

10. In my view, it would be unjust from the wife’s perspective to assume, particularly given her change of employment recently, that she will be able to continue to earn $1000 per week going forward.  On the other hand, it is difficult to predict with any certainty as to the amount which she will be able to earn into the future.  In my view, and applying a broad brush, it is appropriate to factor in the prospect that the wife will in the future be able to earn about $500 per week, and accordingly, with effect from today, the obligation under the orders which I made in June will be to reduce the amount that the husband has to pay to the wife by the sum of $500 per week, making a liability under the orders going forward in the sum of $1250 per week together with the other components of the maintenance order that have been previously adverted to, namely the payment of the wife’s rent, health insurance and liabilities to the Commonwealth Bank. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 6 September 2013.

Associate: 

Date:  6 September 2013