TAHAN & CELIK

[2020] FamCA 772

FAMILY COURT OF AUSTRALIA

TAHAN & CELIK [2020] FamCA 772

FAMILY LAW – SPOUSAL MAINTENANCE – Where the de facto wife seeks an order that the husband pay her periodic spousal maintenance – Where the de facto wife has not established an inability to support herself – Application dismissed.

Family Law Act 1975 (Cth) s 90SF

Clauson and Clauson (1995) FLC 92-595
Eliades and Eliades (1981) FLC 91-022
Hall v Hall [2016] 257 CLR 490
In the Marriage of Bevan (1995) FLC 92-600; (1993) 19 Fam LR 35
N & N (1997) FLC 92-782 at 84,643
Nutting and Nutting (1978) FLC 90-410

APPLICANT: Ms Tahan

RESPONDENT: Mr Celik

FILE NUMBER: PAC 380 of 2017

DATE DELIVERED: 16 September 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Thurlow Fisher Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Dib & Associates

Orders

1. The de facto wife Ms Tahan’s application for interim spouse maintenance contained within the Amended Initiating Application filed 4 May 2018 is dismissed.

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 Tahan & Celik 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 PARRAMATTA

FILE NUMBER: PAC 380 of 2017

Ms Tahan

Applicant

And

Mr Celik

Respondent

REASONS FOR JUDGMENT

Introduction

1. The respondent husband is currently involved in proceedings relating to two separate claims for property adjustment. One dispute is between he and his former wife (“the wife”) and arises from the breakdown of their 19 year marriage and the other dispute arises from the breakdown of his more recent relationship with his former de facto partner (“the de facto wife”).

2. In this application the de facto wife seeks interim orders for spouse maintenance pursuant to section 90SF of the Family Law Act 1975 (Cth) (“the Act”).

3. The husband opposes this application and seeks that it be dismissed.

4. The second respondent wife did not seek any orders in relation to this interim application or participate in the hearing.

Background

1. The husband who is 59 and the wife who is 44 married in 1980. During their relationship the parties had three children who are all now adults.

2. During the marriage the husband commenced a business C Pty Ltd (“the business”). Also at some stage during their relationship the husband and wife jointly purchased a property in Suburb B (“the Suburb B property”) which they continue to own in joint names.

3. The husband and wife separated after a 19 year marriage in 1999 but have never divorced.

4. In February 2010 the husband commenced a relationship with the applicant de facto wife who is also 44.

5. The nature of the relationship between the husband and de facto wife is in dispute. As I understand it, although the husband had previously argued that no such de facto relationship existed he now appears to concede that the parties were in a de facto relationship at one point in time but describes it as one that was “on again/off again”.  There seems to be no dispute that for some years the de facto wife and her adolescent son from a former marriage lived in a property owned by the husband and that over the years he has provided some level of financial support to her.

6. It is not in dispute that the de facto wife engaged in some work for the business during the relationship, but the nature and extent of her role in the business is not agreed.

7. The de facto wife and husband separated in January 2017 and the de facto wife considered that the relationship was at an end. It appears that the husband did not consider that the relationship was at an end at this stage.

8. On 31 January 2017 the de facto wife commenced proceedings in the Federal Circuit Court seeking orders for property adjustment as between she and the husband. Little progress was made in those proceedings in that court apparently at least in part due to inadequate disclosure being made and delays in the valuation of assets.

9. The de facto wife filed an Amended Initiating Application on 4 May 2018 seeking an order that the husband pay her $1,140 per week in spouse maintenance. It is not clear why that application was not listed for hearing in the Federal Circuit Court until October 2019.

10. It is the husband’s case that after the de facto wife initiated proceedings the parties on occasions reconciled and the relationship continued, only to end again. It would appear that the husband contends that his relationship with the de facto wife ended in May 2019. Regardless of when this relationship ended it is not in dispute that the husband has continued to provide the de facto wife with financial assistance up until the time of the interim hearing by allowing her to use his credit card to pay various expenses, made some deposits into her bank account and allowed her full use of a car owned by the business.

11. On 21 December 2018 orders were made with the consent of the parties restraining the husband from dealing with his interests in two properties and joining the wife to the proceedings as Second Respondent.

12. When this application came before the Federal Circuit Court for hearing in October 2019 the court noted that the de facto wife and husband had apparently come to an agreement that would resolve the dispute. They were to prepare a Minute of Order and forward it the court at a future date so that final orders could be made with their consent. No such Minute of Order was forwarded to the court.

13. In February 2020 the proceedings were transferred to this Court as the judge in the Federal Circuit Court considered that they are complex. On the day the proceedings were transferred, the court was also informed that the de facto wife and husband were no longer in agreement regarding the settlement of the property proceedings between them and the de facto wife pressed for a hearing of her interim spouse maintenance application that had been on foot at that stage for almost two years.

14. On 15 June 2020 the de facto wife’s spouse maintenance application was heard and judgment reserved.

The Application

1. The de facto wife seeks an order that the husband to pay her $1,140 per week by way of spouse maintenance.

2. The husband opposes this application on the basis that he is not reasonably able to provide maintenance to the de facto wife and as she has not established that she is unable to support herself.

The Law

1. The purpose of an application for interim spousal maintenance is to provide for the interim financial needs of the claimant. The payment of such a claim depends upon two matters: the needs of the claimant and the capacity of the respondent to pay. 

2. Section 90SF of the Act provides as follows:

   (1)In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:

   (a)only to the extent that the first-mentioned party is reasonably able to do so; and

   (b)only if the second-mentioned party is unable to support himself or herself adequately whether:

   (i)by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or

   (ii)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (iii)for any other adequate reason.

3. In the Hall v Hall[1] at 496 the High Court described s 72(1) (the relevant provision for married parties, which is in almost identical terms to 90SF) as: “the gateway to the operation of Pt VIII in relation to spousal maintenance”. 

   [1] [2016] 257 CLR 490

Applicant de facto wife unable to support self

1. The test of ability to support one’s self in s 72(1) was interpreted in Eliades and Eliades[2] as:

   “[N]ot identical to the test of whether one is in need but means whether the applicant is in a position to finance himself or herself from his or her own resources. That is to say, the test is whether by reason of earning capacity, by reason of capital or other sources of income which have accrued independently to the applicant, the applicant is in a position to look after herself …”

   [2] (1981) FLC 91-022 at 76,232. See also Clauson and Clauson (1995) FLC 92-595.

2. The claimant for maintenance must establish that he or she is unable to support herself or himself adequately. The word ‘adequately’ was interpreted by Lindenmayer J in Nutting and Nutting[3] as:

   A standard of living which is reasonable in the circumstances, including the circumstance that the parties are no longer husband and wife and that the assets and resources which were formerly available to them both in common have now been divided between them.

   [3] (1978) FLC 90-410 at 77,094.

3. The Full Court agreed with this interpretation in In the Marriage ofBevan[4]. The Full Court also said that a court is not bound by a principle that an applicant is entitled to the same standard of living as was enjoyed prior to separation whenever the respondent is able to pay.

   [4] (1995) FLC 92-600; (1993) 19 Fam LR 35.

4. Section 90SF(1)(b) sets out two of the specific matters that may affect a person’s ability to support herself or himself adequately being having the care and control of a child or children and having no capacity for employment. The section also refers to an inability to support oneself “for any other adequate reason”.

5. Mullane J in N & N[5] stated that:

   [T]he interpretation of the expression “unable to support herself or himself adequately” is subject to the words “having regard to any relevant matter referred to in subsection 75(2).

   [5] (1997) FLC 92-782 at 84643.

6. The de facto wife presses the application for spouse maintenance on the basis that she is unable to support herself adequately by reason of having no capacity for employment. She deposes to a total weekly income of $402.50 in her Financial Statement which represents the weekly government benefit she receives as she is currently unemployed.

7. The de facto wife also seemed to press an argument that she is unable to support herself adequately pursuant to s 90SF(1)(b)(iii) (namely, for any other adequate reason) due to the manner in which the husband has provided financial support since separation. She argues that this assistance has been sporadic and amounts to an attempt to control her behaviour as it has been given for the purposes of pressuring her into withdrawing court proceedings or resuming a relationship with him.

8. Clearly, the de facto wife’s Financial Statement is incomplete as even on her own case she reports receiving financial support from the husband by being able to utilise a credit card paid for by him in his name. In her affidavit in support of this application sworn 10 June 2020, she deposes to the husband fulfilling his promises “to financially support me” and that he has engaged in a pattern of supporting her but withdrawing his support when she does not do as he wishes. Although it is contended on the de facto wife’s behalf that she considers the husband’s conduct in this regard to amount to financial abuse, she deposes to him currently supporting providing financial support to her. The general tenor of the de facto wife’s application is that as she fears that this financial support will be withdrawn in the future she is seeking that the husband pay a defined amount in spouse maintenance in the event that that occurs.

9. Although at one point in her affidavit the de facto wife deposes to the husband permitting her to use the credit card for the payment of specific bills, elsewhere in her affidavit she deposes to the husband paying for other expenses such as $500 towards dental care in February 2019. In bank records tendered on her behalf, there are also records of cash deposits made to a bank account in her name.

10. A text message interchange between the parties attached to the de facto wife’s affidavit is consistent with her evidence that the husband had given her his credit card to use for her own purposes during his absence overseas in 2019. This text message interchange appears to have been annexed by the de facto wife in support of the contention that there was some dispute between the parties over the extent to which she was permitted to use the credit card but it also indicates that while the husband was concerned about the de facto wife using the credit card for the purposes of paying fines without informing him in advance, he had no objection to the de facto wife using that credit card for her reasonable financial support. This is particularly evident when he writes:

    …I don’t mind but

    We still need to budget

    Really babe

    I’m here doing everything I can for u

11. The de facto wife also deposes to the husband allowing her access to a credit card to pay some bills as recently as May 2020.

12. The extent of the financial support provided by the husband is not quantified or even identified in the de facto wife’s Financial Statement. In the foregoing circumstances it suffices to say that the de facto wife must have access to an income stream in addition to her government benefit. In other words she has only deposed to the income that I must disregard for the purposes of this application but is silent in relation to the funds she receives from the husband.

13. The de facto wife asserts that she is unable to work as she suffers from depression. She relies upon various medical certificates most of which form part of her periodic applications for Centrelink benefit. A number of these documents are illegible. They appear to date from as early as January 2018 (one year after separation) to July 2020. The earliest of these certificates (December 2017-January 2018) is inconsistent with the de facto wife’s evidence that she continued to work in the husband’s business until April 2018.

14. In each of the more recent certificates (which relate to most of the period from November 2019 to July 2020) a medical practitioner certifies that the de facto wife is unable to work for specified periods of time (generally about one month) by reason of her diagnosis of depression. In two of the most recent certificates the medical practitioner states that her condition is “temporary” and that she “is likely to show considerable improvement within two years”. No other evidence is adduced as to her incapacity to work by reason of this condition.

15. Although being an interim application so I do not make any findings, I approach the de facto wife’s claim concerning her depression (and thus her inability to work) with some caution even where it is supported by a medical certificate that forms part of an application for Centrelink benefit for two reasons.

16. First, according to her affidavit she has been diagnosed with depression from “the outcome” of the relationship which I understand to mean she has experienced depression which has rendered her unable to work since the relationship ended three and a half years ago. This is inconsistent with her case that she continued in employment, taking on a significant role in the business including travelling overseas on two occasions up until at least April 2018.

17. Second, as noted previously, some of the medical certificates (from December 2018) although illegible are contended by the de facto wife to certify her incapacity for employment on the basis of depression during a period where on her own evidence she continued to be employed in the husband’s business.

18. The husband contends that the de facto wife’s argued incapacity to support herself is due to her excessive spending and that she has no incapacity on medical grounds. It would appear that he contends that little weight should be attached to the medical certificates attached to Centrelink applications.

19. Counsel for the husband contends that the de facto wife’s deposed total weekly personal expenditure of $1,153 in her Financial Statement is excessive in the following respects:

    ·She is not in need of a car as she is not employed and her claimed expenditure of $80 per week for petrol and $41 per week for car insurance are demonstrative of excessive spending.

    ·Her claimed weekly expenses for clothing of $125, dry cleaning at $25, hairdressing and toiletries at $200 and gym at $20 per week are excessive generally, particularly in the climate of a pandemic

    ·The de facto wife’s gardening expenses at $10 a week, household repairs of $50 a week and household supplies of $100 a week are excessive given her evidence that she lives with her mother.

    ·She offers no explanation for spending $20 on gifts a week in circumstances where she contends financial hardship.

    ·Her telephone expenses of $40 a week are objectively high for a phone plan.

20. Without making any findings and on the basis of the available evidence I am not satisfied to the requisite standard that the de facto wife is unable to support herself adequately for any of the reasons set out in the Act for the following reasons.

21. The de facto wife’s case was run on the basis that due to mental incapacity she is unable to obtain appropriate gainful employment. She adduces no evidence in support of her contention that she has suffered depression for three and a half years which has caused her to be unfit for employment other than the certificates obtained for the purposes of making a Centrelink claim. Although the husband disputes the nature of the de facto wife’s role in his business, describing it as “tokenistic” and deposing that he essentially found something for her to do in the business, the de facto wife contends that she held a significant position in that business and continued to work in it up until April 2018. If the de facto wife was depressed at this time as she contends it is difficult to attach weight to the various doctor’s certificates which are said to certify that she had not capacity for work at the time.

22. Further, in the two most recent certificates the medical practitioner states that her condition is “temporary” and that she “is likely to show considerable improvement within two years”. There is no evidence about when she may have some capacity for employment as her condition improves.

23. It is also in my view significant when considering the word “adequately” in relation to the capacity of the de facto wife to support herself, that she appears to be asserting some standard of entitlement to the lifestyle as was enjoyed prior to separation. I accept the submission made by the husband that many of the de facto wife’s weekly expenses as set out in her Financial Statement are objectively high particularly the sums nominated for hairdressing and toiletries, dry cleaning, clothing, gym, gardening, gifts and telephone. I also note the general tenor of her application that the husband has supported her financially to date and that she is making this application in expectation that this support may soon be withdrawn. In this regard I also note that some of items that she has expected the husband to pay under their current arrangement (whereby she is able to utilise his credit card) such as fines are of a non-essential nature. 

24. Further, I consider it likely that the de facto wife has sources of income other than the Centrelink benefit to which she deposes, which must be disregarded. In particular, it appears that the husband continues to support the de facto wife financially at present for the reasons previously discussed but she does not refer to or attempt to quantify this amount in her Financial Statement.

1. Further, the de facto wife’s asserted weekly expenditure also significantly exceeds her income but she has not explained how she has been able to fund this lifestyle for the three and a half years since the parties separated. She deposes to the husband providing some financial support to her from time to time since separation and to borrowing from friends and that she has a Centrelink debt, though it is unclear how this debt has accrued. The liabilities set out in her Financial Statement (of $6,300) are minimal considering the asserted shortfall of at least $750 per week based on weekly expenses and income deposed to in her Financial Statement. If the de facto wife’s expenses exceeded her income by $750 a week throughout the three and half years since separation as she appears to contend than her level of indebtedness would amount to well over $100,000.

2. In the foregoing circumstances I consider that the de facto wife’s expenditure is excessive, that she receives financial support from the husband and possibly other income which has not been disclosed in her Financial Statement and that real questions arise as to her alleged incapacity for employment. For these reasons I am not satisfied that the de facto wife is unable to support herself adequately.

3. In the foregoing circumstances I need not consider the husband’s ability to pay as the claimant must establish both matters as a threshold in an application for spousal maintenance.

4. Accordingly the de facto wife’s application is dismissed.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 September 2020.

Associate: 

Date:  16 September 2020