Tamson and Moritz

[2019] FamCA 552

FAMILY COURT OF AUSTRALIA

TAMSON & MORITZ [2019] FamCA 552

FAMILY LAW – VARIATION OF SPOUSE MAINTENANCE ORDER – Where application to vary de facto spouse maintenance order s 90SI(3) Family Law Act1975 (Cth) – Where primary order made by consent – Where both parties represented at time of consent order – Where consideration of applicable principles – Where wife fails to make out ground to enliven jurisdiction to vary order – Where application dismissed

Family Law Act 1975 (Cth) ss 78, 90SI

Cuny & Cuny (No. 2) [2014] FamCA 884

APPLICANT: Ms Tamson

RESPONDENT: Mr Moritz

FILE NUMBER: PAC 3629 of 2017

DATE DELIVERED: 15 August 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 23 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rosic

SOLICITOR FOR THE APPLICANT: Rowlandson & Co Solicitors

COUNSEL FOR THE RESPONDENT: Mr Campton SC with him Mr Gardiner

SOLICITOR FOR THE RESPONDENT: Coleman Greig Lawyers

Orders

1. That the wife’s application for variation of spouse maintenance be 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 Tamson & Moritz 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 3629 of 2017

Ms Tamson

Applicant

And

Mr Moritz

Respondent

REASONS FOR JUDGMENT

1. The application for determination is an application by the former de facto spouse for variation of a periodic spousal maintenance order made by consent on 1 September 2017.

2. Section 90SI of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:

   (1)If there is in force an order with respect to the maintenance of a party to a de facto relationship in accordance with this Division:

   (a)made by the court; or

   (b)made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;

   the court may:

   (c)discharge the order if there is any just cause for so doing; or

   (d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event; or

   (e)revive wholly or in part an order suspended under paragraph (d); or

   (f)subject to subsection (3), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

   (2)The court's jurisdiction under subsection (1) may be exercised:

   (a)in any case--in proceedings with respect to the maintenance of a party to the de facto relationship in accordance with this Division; or

   (b)if there is a bankrupt party to the de facto relationship--on the application of the bankruptcy trustee; or

   (c)if a party to the de facto relationship is a debtor subject to a personal insolvency agreement--on the application of the trustee of the agreement.

   (3)The court must not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

   (a)that, since the order was made or last varied:

   (i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship); or

   (ii)the circumstances of the person liable to make payments under the order have so changed; or

   (iii)in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such;

   as to justify its so doing; or

   (b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing; or

   (c)in a case where the order was made by consent--that the amount ordered to be paid is not proper or adequate; or

   (d)that:

   (i)material facts were withheld from the court that made the order, or from a court that varied the order; or

   (ii)material evidence previously given before such a court was false.

   (4)In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

   (5)The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.

   (6)In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made by a party to the de facto relationship, or by the bankruptcy trustee of a party to the de facto relationship, to:

   (a)the other party; or

   (b)any other person for the benefit of the other party.

   (7)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

   (8)If, as provided by subsection (7), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date, being money that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act.

   (9)If, as provided by subsection (7), an order discharging an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

   (10)For the purposes of this section, the court must have regard to the provisions of section 90SF.

   (11)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

3. The primary order for periodic spousal maintenance made 1 September 2017, in summary, provides that the de facto husband pay to the de facto wife by way of spouse maintenance the following:

   a)$640 per week being a contribution towards the rent payable by the wife until 31 May 2018;

   b)$200 per week for the financial support of the wife until 21 May 2017 (sic); and

   c)sums equal to the amount payable by the wife to the G School at Suburb H for the school fees only for the attendance of the wife’s daughter X at that school until the child ceases to be enrolled to attend at that school or completion by the child of her Higher School Certificate exams, whichever shall first occur.

4. The present school fees for the child X, who is in year 12, are about $8,781 per annum (about $170 per week over a full year).  The wife asserts that as at 9 July 2019 there was a balance of $17,481 outstanding as to school fees due and payable by 2 August 2019.  The husband for his part says that these are not his arrears but relate to the child Y who attends the same school.

5. Otherwise, the parties by reason of the orders made 1 September 2017 obtain declaratory relief presumably under section 78 of the Act as to each retaining their respective assets at that time.

6. Subsequently, in October 2018, the wife filed an Initiating Application seeking to have the consent orders set aside and pursuing orders as to property adjustment. On 7 December 2018 both the husband and wife filed Notices of Discontinuance of those proceedings. 

7. The current present application was filed by the wife on 16 January 2019 when she filed another Initiating Application.

8. In her further Amended Initiating Application filed 22 July 2019 the wife sought orders:

   a)that pursuant to section 79A of the Act orders made on 1 September 2017 be set aside;

   b)that in the event that leave was required that the wife be granted leave to commence property proceedings out of time; and

   c)that the husband pay to the wife such sum as may be determined by way of property adjustment.

9. In the interim orders sought in her further Amended Initiating Application, the wife sought an order varying the order referred to above so as to provide for a payment of a lump sum by way of spousal maintenance in the sum of $120,000 or in the alternative periodic spouse maintenance to her in the sum of $1,200 per week.

10. The issues touching upon property settlement as between the parties await determination on another occasion.

11. In support of her application for variation of the primary order, the wife relied upon the following documents:

    a)her Financial Statement filed 17 June 2019;

    b)her affidavit filed 17 June 2019,

    c)her affidavit filed 17 July 2019; and

    d)the affidavit of Dr B filed 18 July 2019.

12. For his part, the husband filed a Further Amended Response on 22 July 2019 seeking orders that the Further Amended Initiating Application of the wife be dismissed.

13. The husband relied upon the following documents:

    a)his Financial Statement filed 22 July 2019; and

    b)his affidavit filed 22 July 2019.

The wife’s evidence

1. The wife is presently aged 46 and the husband 75.

2. The parties commenced cohabitation in a de facto relationship in early 2013 and separated in about March 2018 although they travelled together overseas for two discrete periods during the latter part of 2018.

3. The husband for his part contends that the parties separated on 14 January 2017.  The determination of this factual issue is not necessary for the purposes of the present application.

4. Much of the wife’s affidavit evidence relates to issues that are not relevant for the purposes of the present determination.

5. The wife has two children from a former relationship X born in 2001 and Y born in 2005.

6. At the commencement of cohabitation the wife and her two children commenced residing with the husband in his home at C Street, E Town.

7. The wife asserts a history of significant ill-health and currently suffers from diabetes that requires insulin injections daily.  She is presently on a Centrelink disability pension receiving about $440 per week.

8. Otherwise, the wife is self-employed using her company K Pty Ltd that trades from her rented premises at Suburb J asserting modest earnings from a business of about $200 per week.  The company holds stock and equipment and photographs reveal what appears to be a reasonably well set up facility in her home.

9. In addition, she receives a Centrelink family tax benefit for her children in the sum of $230 per week and a total of $416 per week by way of child support from the children’s fathers.

10. The wife has modest assets, including an older motor vehicle, nominal bank accounts and nominal items of personalty.  She, otherwise, has a personal loan liability to the ANZ bank of about $19,000 for cosmetic surgery and has credit card debt that she asserts were accumulated for living expenses totalling about $5,900.

11. The wife asserts that the husband is in arrears of his obligation to pay to her spouse maintenance in a sum fixed by reference to her daughter’s school fees with those arrears being disputed by the husband.

12. Her assertion is that she is unable to support herself adequately by reason of her health and incapacity for other gainful employment.

13. The wife acknowledges that the husband brought into the relationship significant assets which he continues to retain.

14. The wife has an obligation to maintain her two children, receiving child support from each of their fathers although she receives no parenting assistance as the children spend no time with their fathers.

15. The property rented by the wife is a five bedroom home providing accommodation for herself and her children with her business occupying a granny flat above the garage.  She pays rent of $650 per week.

16. The wife says that she was previously in a relationship with a Mr F but that relationship has now ended. The husband asserts that it has not.

Change of Circumstances

1. The wife asserts that her circumstances have significantly changed since orders were made on 1 September 2017.

2. As at the date of orders the wife was residing in rented premises at R Street, Suburb J with the rent of $640 per week being paid by the husband pursuant to the orders.  At that time she was in receipt of disability benefits and family tax benefits totalling $475 per week.

3. In early September 2018 the wife moved to premises at D Street, Suburb J where she pays rent of $650 per week. The home is a five bedroom, three bathroom house. The application for lease is curiously for two adults and two children and nominates Mr F as the emergency contact. Mr F, it appears, supported the application by providing a work reference as to his employment and income.

4. The wife asserts that her business for the financial year ended 30 June 2018 ran at a loss of $2,900 but there is no evidence as to the trading circumstances by way of profit and loss details of that business as at the date of the orders.

5. The wife acknowledges that she had health issues as at the date of the orders but asserts that her health since that time has deteriorated and that her financial circumstances are such that she is unable to seek appropriate medical intervention. Otherwise, she asserts that she is unable to obtain gainful employment due to her health; suffering from ongoing pain and panic attacks.  She has been unable to afford private health insurance since early November 2017.

6. The wife’s treating general practitioner Dr B commenced treating the wife in mid-July 2018.  The practitioner has seen no medical records as to the wife for the period prior to July 2018.  The practitioner in her short report dated 16 July 2019 notes that the wife has been on a waiting list for a gastroscopy and colonoscopy since June 2018.  The wife is prescribed regular anti-anxiety medication, particularly in relation to stress relating to the present proceedings.  The wife has commenced seeing a treating psychologist but there is no report available in the context of the present application.  Dr B opines that the wife’s daily function has been significantly impacted by her current psychological distress that has exhibited itself in poor concentration at work, lack of motivation, insomnia, low appetite, and social withdrawal.  In reporting that the wife’s mental and physical health has deteriorated over the last several months, Dr B provides no opinion or conclusion as to whether the wife is incapacitated or limited in her capacity for employment in her present occupation or otherwise as a consequence.

7. The wife provides no evidence as to seeking to obtain any further or other employment on either a part-time or full-time basis.

8. Otherwise, she asserts the general cost of living in Sydney has increased since September 2017 although no objective evidence is adduced by her.

9. The wife asserts her “maintenance needs” as at September 2017 totalled about $2,000 per week.  However, clearly the components as to her assertion then include expenses relating to her whole household including two children who are not children of her relationship with the husband.

10. The wife sets out in her Financial Statement her present weekly needs as follows:

    Rent   $650.00#

    Car Insurance   $  37.50

    ANZ Loan   $  99.00

    Credit Cards  $  50.00

    Food   $  70.00

    Gas/Electricity                     $130.00#

    Petrol   $  60.00#

    Medical   $100.00

    $1,196.50

    Yet the expenses marked with a hashtag (#) would appear to include a portion relating to the children of her previous relationships.

Material Omission or False Evidence

1. The wife asserts that as at April 2016 the husband represented his assets at about $37.5 million.  Subsequently, as at the time of the consent orders, he asserted his assets to be $5.578 million.  In the context of the current application he asserts his assets at $3.373 million.  The wife expresses some conjecture as to why his position has changed so significantly but adduces no evidence to suggest that in the context of an agreement as to periodic spouse maintenance there was any material omission of fact or false evidence given by the husband.

The husband’s evidence

1. The husband through his counsel conceded that he would have the capacity to pay periodic spouse maintenance after the sum of $1,200 per week from his financial resources or capital.

2. The husband has four adult children of his previous relationships.  The youngest being now 34 years of age.

3. The husband says that the consent orders made on 1 September 2017 were made to finalise the financial relationship between he and the wife.

4. At the commencement of the parties’ cohabitation the husband was the sole shareholder of M Pty Ltd that operated as the manager of N Ltd established by the husband in 1984.  The majority of the freehold land comprising the business premises was owned by N Ltd with M Pty Ltd holding all shares in that entity. Otherwise, the husband controlled L Holdings Pty Ltd that is the trustee of the P Trust.

5. The husband retains these same entities and assets now.

6. The husband acknowledges the wife’s health issues that were he says readily apparent from the commencement of their relationship.

7. The husband asserts that the wife remains in a personal relationship with Mr F he having observed them together at times as recently as July 2019.  He asserts that they have lived together continuously since February 2018. The evidence on hearing does not allow this controversy to be resolved.

8. The husband receives a salary of $110,000 gross per annum that he asserts is his only source of periodic income.  Otherwise, he has access to funds that he has drawn down as a director’s loans, currently owing about $103,000 to the company.

9. He asserts that the current value of the land owned by his corporate entity is about $14 million with liabilities including about $10.124 million in secured loans. 

Discussion

1. The husband’s present liability by reason of the consent orders for ongoing spousal support is about $170 per week. The consent orders were made at a time when the wife was legally represented.

2. The wife, in summary, asserts she is in receipt of income on a casual basis of about $200 per week, her disability pension of $440 per week, Family Tax Benefit of about $230 per week and child support of $416 per week. Such total $1286 per week. In addition, she receives effectively about $170 per week from the husband under the present order.

3. In response to a request the wife provided various bank statements. No profit and loss or financial statements were produced relating to her company.

4. The wife’s financial statement referred to two Q Bank accounts being account numbers ending …3 and …2 with minimal balances.

5. Q Bank account …3 sees the deposits of her disability pension, child support and Centrelink family allowance payments. The account reveals transfers to various other non Q Bank accounts.  Q Bank account …2 sees deposits of child support for the child Y and some transfers to other non Q Bank accounts.

6. At hearing the wife produced accounts relating to ANZ account …4 from May 2019. Various deposits to that account appear to be income from various sources and transfers from another unidentified ANZ account.  Deposits for the period from 17 May 2019 to 18 July 2019 totalled $8,583 or about $1,000 per week. Earlier deposits for the period 18 September 2018 to 18 January 2019 total $17,464 or just over $1,000 per week. No other statements were produced for these accounts.

1. The bank statements are clearly indicative of the wife receiving income deposited to her accounts far in excess of her contention.

2. The husband’s present and remaining maintenance obligation will end in November/ December 2019. 

3. The circumstances in which the Court may vary a maintenance order are proscribed by s 90SI(3):

   (3)The court must not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

   (a)that, since the order was made or last varied:

   (i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship); or

   (ii)the circumstances of the person liable to make payments under the order have so changed; or

   (iii)in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such;

   as to justify its so doing; or

   (b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing; or

   (c)in a case where the order was made by consent--that the amount ordered to be paid is not proper or adequate; or

   (d)that:

   (i)material facts were withheld from the court that made the order, or from a court that varied the order; or

   (ii)material evidence previously given before such a court was false.

4. Resulting from the discussion above, the Court is not satisfied that there has been a change in the circumstances of either party such as would justify a variation of the order as it stands. The wife’s disclosure is indicative of her circumstances in fact being better than at the time of the orders, yet the husband does not seek to vary his present liability.

5. There is no evidence as to any relevant change in the cost of living.

6. There is no evidence sufficient to demonstrate that the primary order at the time was not “proper or adequate”. The orders were made by consent with both parties represented. It is readily apparent that the application for consent orders was poorly completed. Neither party contends that the orders do not reflect their agreement at that time.

7. The wife asserts her needs at that time but does so in an overall way without differentiation as to her own expenses. She proffers no evidence as to her income or resources especially where there is a contention that she had commenced a de facto relationship with Mr F at that time.

8. It is unsurprising that some compromise was reached between the parties as to the quantum of the order for spousal maintenance in the context of consent orders. It is not, however, open to the wife, having agreed to such orders, to now assert that the amount which was ordered to be paid is not proper or adequate. It was open to her at the time of the consent orders had she chosen to do so, and had she been of the view that the amount which was agreed to by the husband was inadequate, to not agree to the order. She cannot now assert that the amount to which she agreed, in those circumstances, was neither proper nor adequate: See Cuny & Cuny (No 2) [2014] FamCA 884 (Rees J.).

9. Otherwise, in the context of spousal maintenance there is no evidence that “material facts” were withheld from the Court. It is contended that the issue of the parties’ separation was not properly before the Court. The wife contended that the parties were in fact not separated and thus the Court had no jurisdiction to make the impugned orders. That contention is rejected. She herself represented to the Court the date of separation in the joint application for consent orders. The power to make a maintenance order is consequent upon the “breakdown” of the de facto relationship.  Such is often the case yet parties continue to occupy the same home.

10. It is further contended that the parties did not disclose the existence of a previously signed financial agreement. Yet it is common ground that the parties has later signed a termination agreement. There was no asserted bar to the spouse maintenance order being made by consent.

11. By reason of the above discussion, the wife has failed to satisfy the Court that the provisions of s 90SI(3) are enlivened so as to allow the Court to consider a variation of the present order.

12. The wife’s application will be dismissed.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 15 August 2019.

Associate: 

Date:  15 August 2019