Tomholt and Reed
[2008] FMCAfam 380
•18 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOMHOLT & REED | [2008] FMCAfam 380 |
| FAMILY LAW – Interim spousal maintenance – parties’ joint expenditure exceeds their joint income – parties separated under one roof. |
| Family Law Act (Cth) 1975 ss.72, 74, 75, 80(1)(h) |
| Bevan (1995) FLC 92-600 Mitchell (1995) FLC 92/601 Pastrikos (1977) 31 FLR 524 Redman (1987) 11 FamLR 411 White (1995) FLC 92-648 Williamson (1978) 4 FamLR 355 Wilson (1989) 13 FamLR 205 |
| Applicant: | MR TOMHOLT |
| Respondent: | MS REED |
| File Number: | MLC 1569 of 2008 |
| Judgment of: | Walters FM |
| Hearing dates: | 16 & 17 April 2008 |
| Date of Last Submission: | 17 April 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 18 April 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms M Vohra |
| Solicitors for the Respondent: | Pearsons Barristers & Solicitors |
ORDERS
Until further order, the husband pay the following expenses as and when they shall fall due:
(a)all instalments under the Maxis Loans mortgage (or any other mortgage or loan) currently secured against the property at Property [C];
(b)all instalments under the Maxis Loans mortgage (or any other mortgage or loan) currently secured against the property known as Property [K],Queensland; and
(c)all rates, taxes, body corporate fees, unit levies and other expenses or outgoings (of any nature whatsoever) of or relating to the [K] unit.
Until further order, the wife pay – as and when they shall fall due – the gas, electricity, water rates, Council rates, house property and contents insurance relating to the [C] property.
Until further order, the husband be and is hereby restrained by injunction from applying for any portion of the family tax benefit or other government benefit currently paid to the wife to be paid to him instead of to the wife.
The parties attend a Conciliation Conference with a Registrar of the Federal Magistrates Court of Australia at the Melbourne Registry on
19 June 2008at 11.00 a.m.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the children attend upon a Family Consultant (“the Family Consultant”) nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia, for the purposes of the preparation of a Family Report to be given to the Court prior to 4 July 2008, such Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those views);
(b)the matters set out in ss.60CC, 61DA and 65DA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare of best interests of the said children.
The parties do comply with all reasonable directions as to attendance upon the Consultant as and when required by the Consultant.
Within 7 days of being notified of the Consultant, the solicitor for each of the parties do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;
(b)all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and
(c)any intervention or restraining orders currently in force.
If a party is not represented by a solicitor, then within 7 days of being notified of the Consultant that party do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the within proceedings;
(b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the within proceedings; and
(c)any intervention or restraining orders currently in force.
Until further order, the both parties, his/her servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the said children from the Commonwealth of Australia.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children’s names on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the children’s names on the Watch list until further order of the Court.
The matter otherwise be adjourned to:
(a)15 July 2008 at 9.45 a.m. in the Duty List, before Turner FM; and
(b)16 September 2008 at 10.00 a.m. for final hearing (with an estimated hearing time of 3 days), before Turner FM.
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The husband do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the trial date.
The wife do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the trial date.
Both parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date.
THE COURT NOTES THAT
Until further order –
(a)the husband is entitled to retain the income from the [K] unit (on the basis that he is obliged to meet the payments set out in the above orders);
(b)each party will continue to meet their obligations in relation to the children's school fees (the husband being obliged to pay $285 per week and the wife being obliged to pay $260 per week); and
(c)each party will continue to receive the board paid by, and meet the expenses associated with, the homestay student that he/she has recruited.
Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Tomholt & Reed is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1569 of 2008
| MR TOMHOLT |
Applicant
And
| MS REED |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Before the court are the parties’ competing applications for various interim orders. In broad terms, each seeks orders regarding the payment of a number of expenses relating to the property in which they currently reside and an investment property at [K] in Brisbane. I use the description "investment property" loosely, because the value of the [K] property appears to have dropped by approximately 50% since it was purchased, and because the ongoing and potential costs of retaining it appear to significantly outweigh the income it generates.
The property in which the parties live is a converted warehouse in [C]. Although they separated in June 2007, the parties continue to live under one roof.
There are four children of the marriage, aged between 11 and 3.
In addition to the parties and the children, two homestay students live in the [C] property. Each student pays board of $200 per week. The parties agree that a reasonable allowance for the food and other items consumed by each student is approximately $85 per week. It follows that the net "income" attributable to each student is approximately $115 per week. The husband has assumed responsibility for one student and the wife has assumed responsibility for the other. Thus, each can be regarded as deriving a net income of $115 per week from that source.
The wife is 48. Although in good health, she has not engaged in paid employment for some 12 years. She asserts that she has devoted herself to the full-time care and supervision of the children, and attended to home duties and chores, during that period. She also asserts that she has no skills or experience which would enable her to re-enter the workforce at the present time. In any event, she wishes to continue (for the foreseeable future, at least) in her role as primary home maker and caregiver for the children.
The husband does not accept that the wife was the primary home maker and caregiver for the children, and has sought to emphasise his input into the various tasks and duties associated with the performance of these roles. Given that the present proceedings relate to interim orders only, I am unable to make any clear finding regarding the parties’ respective contributions in the past and since separation. Suffice it to say, however, that the wife's version of events is likely to be more accurate than that of the husband, given that the husband has been working on a part-time basis (three days per week) as a music teacher, playing in a band and doing construction or renovation work on the [C] property. Indeed, the husband himself says as follows:
… I successfully maintain my professional career both as teacher of music at [N] since 1989 and as a performing artist having performed and produced recordings both as a solo artist and with many well-known performers and orchestras from both within Australia and from overseas since approximately 1980. …
For the previous 18 years I have focused on the welfare of my family by creating steady though modest income yet renovating our main asset, the home we live in. From late 1996 to 2007 I undertook large-scale building renovations using all possible free time and also performed ongoing maintenance to what was a large two-storey dilapidated warehouse …
I have sustained repetitive strain injuries from using power tools and from my labours of past 10 years building. …
Since our separation I am inhibited from attending to my children due to work and teaching on evenings, and by my wife's presence at times other than the minimal contact she agrees to allow me at present. …
I enjoy and welcome sharing equal responsibility for my children. My wife has had greater opportunity to do this having not been employed much since 1996 whilst I work.
Unfortunately, the husband's affidavit is relentlessly critical of the wife and gives her no (or virtually no) credit for the contributions that she has made during the course of the relationship. He complains about almost every aspect of her character and personality. He appears to accept no responsibility whatsoever for the marriage breakdown and appears -- from his affidavit, at least -- to have no insight into the effect that his negative attitude towards the wife may have had upon her and, ultimately, on their relationship. He accuses the wife of:
(a)being detached from emotional issues;
(b)having unresolved personal issues from her past life;
(c)being unreasonable and uncooperative by refusing to exercise her earning capacity;
(d)being incapable of sharing more responsibility in the parties joint domestic concerns than she did;
(e)not doing enough to keep house organised, clean and tidy;
(f)timing the separation in order to “exploit the accrued benefits of the marriage”;
(g)having the "ability to initiate and rationalise this marital separation into subsequent personal control children and profit …”;
(h)wasting her valuable time with "network marketing colleagues";
(i)having done "little to contribute on a domestic level nor spent adequate time to contribute on a domestic level";
(j)struggling to "maintain adequate domestic responsibility in the home";
(k)suffering "noticeable task management, prioritisation and memory problems";
(l)neglecting the parties’ "joint finances";
(m)being responsible for "the often unhealthy state of (the husband's) children's living environment";
(n)disrupting the household when she does decide to clean the house and wash clothes (which occurs noisily and "mostly late at night");
(o)being involved in "a coercive and complicit effort to engage (the husband's) consent" to the purchase of the [K] property, and of being wholly responsible for the financial failure of the venture through her "wilful decision to pursue purchase of the property";
(p)being financially irresponsible by insisting that the children remain at their present (private, fee-paying) school;
(q)being guilty of "deceptive conduct within her past and existing joint financial administration";
(r)manifesting an intention "to continue exhausting all resources and credit within her immediate reach with no regard to the ultimate consequences for" the family’s and the husband's long-term future; and
(s)acting with "dishonest gratuity".
In short, the husband accuses the wife of being dishonest, deceitful, lazy, dirty, disorganised, financially incompetent, irrational and unreasonable. At the same time, he accuses her of insulting him (although her affidavit contains very little by way of criticism of him) and of unjustifiably seeking to bring their relationship to an end. Having read the wife's affidavit material, and having seen and heard the husband in open court, I am not prepared to accept any of the husband's criticisms of the wife at this stage. Indeed, it is fair to record that the husband presents as a bitter, self-centred and grimly determined person who seems incapable of giving credit where it is due, or of recognising any viewpoint other than his own. It is apparent that he has lost his sense of proportion – although, I hope, only temporarily. In that respect, I refer to the well-known passage from Pastrikos (1977) 31 FLR 524, where Muirhead J said:[1]
May I stress the responsibilities of legal practitioners in acting for clients in this important jurisdiction … The philosophies of the (Family Law Act) are clear and should be borne in mind not only by judges, but by counsel and solicitors. It is true that the adversary system remains in the processes of determining contested issues. But the legal profession act as advisers, they are more than mouthpieces, more than puppets reacting to instructions. In this jurisdiction, the functions of this Court are not often understood by parties in dispute. A bit of sound common sense and dispassionate legal advice will often go a long way in solving the issues confronted by people who have temporarily lost their sense of proportion ….
[1] At page 526 (when speaking of the duties of legal practitioners in cases relating to children); this passage was cited with approval by the Full Court in White (1995) FLC 92-648 at 82,558.
I recognise, of course, that the husband is self represented -- but the above passage serves to describe one of the benefits of a party having competent legal representation.
The husband’s criticisms of the wife are unduly spiteful. In my opinion, he would benefit from appropriate counselling or other professional intervention to assist him to come to terms with the breakdown of the marriage and its consequences.
The orders sought by the parties can be categorised as either asset preservation orders or spousal maintenance orders. To the extent that the husband argues that the wife should be responsible for meeting a significant proportion of the family's expenses, it is convenient to deal with the competing applications from the perspective of spousal maintenance. Relevantly, the competing applications relate to interim spousal maintenance.
Part VIII of the Family Law Act deals with property, spousal maintenance and maintenance agreements. Section 72 deals with the right of a spouse to maintenance, section 74 deals with the powers of the Court in spousal maintenance proceedings and section 75 deals with matters to be taken into consideration in relation to spousal maintenance.
Section 72 is as follows:
72 Right of spouse to maintenance
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, that other party is unable to support herself or himself adequately whether –
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
Section 74 is as follows:
74 Powers of court in spousal maintenance proceedings
In proceedings with respect to maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
Section 75 is as follows:
75 Matters to be taken into consideration in relation to spousal maintenance
(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2)
(2) The matters to be so taken into account are –
(a) the age and state of health of each of the parties;
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l) the need to protect a party who wishes to continue that party's role as a parent;
(m) if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties.
(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
The role of each of these provisions is important:
…section 72, which concerns the liability of one party to a marriage to maintain the other, says nothing of the amount of maintenance that a needy spouse is entitled to receive from his or her partner should the former enforce this liability by a maintenance order. Quantum of spousal maintenance is determined by the court pursuant to section 74, taking into account the…considerations set out in section 75(2). It is possible for a liability to pay maintenance to be established under section 72, yet for the subsequent maintenance order to be quite small – or even for no maintenance order to be made at all – on account of the relevance of particular considerations set out in section 75(2).[2]
[2] See “Family Law” by Dr A Dickey QC (4th Edition — Law Book Co, 2002), at page 468.
In Bevan (1995) FLC 92-600, the Full Court stated that an award of spousal maintenance requires:
(a)a threshold finding under section 72;
(b)a consideration of sections 74 and 75(2);
(c)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
(d)discretion exercised in accordance with the provisions of section 74 with “reasonableness in the circumstances” as the guiding principle.
There is no direct reference to interim maintenance in the Family Law Act. Pursuant to section 80(1)(h) – which is within Part VIII – the Court, in exercising its powers under Part VIII, may “make…an order pending the disposal of proceedings …or until further order”. Spousal maintenance orders of this nature are referred to as interim spousal maintenance orders – but they are subject to the usual criteria for spousal maintenance, as set out in sections 72 and 75. The principal differences between applications for interim spousal maintenance and those for permanent spousal maintenance are as follows:
(a)on an application for interim maintenance the Court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”[3]; and
(b)the trial judge has considerable discretion and (any relevant) appellate tribunal “...would be much more reluctant to interfere than would be the case with an order for indefinite maintenance”.[4]
[3] See Williamson (1978) 4 FamLR 355 and Wilson (1989) 13 FamLR 205.
[4] See Wilson (1989) 13 FamLR 205, citing Redman (1987) 11 FamLR 411.
It is clear from the above that section 72 establishes a threshold question which must be answered before the power in section 74 can be exercised – on either an interim or a permanent basis. The threshold question is whether the applicant is “unable to support herself or himself adequately”, not only by reason of the matters set out in (a), (b) and (c) of that section, but also having regard to any relevant matters referred to in section 75(2). Thus, the question whether an applicant for spousal maintenance (or interim spousal maintenance) can support herself or himself “adequately” is not to be determined by reference to any fixed or absolute standard – but by reference to the matters referred to in section 75(2).[5]
[5] See Mitchell (1995) FLC 92-601 at 81,995.
In my opinion, the wife clearly passes the threshold test on an interim basis. The wife has not engaged in paid employment (to any significant extent, at least) for some 12 years. There is no evidence which would reasonably allow me to conclude that the wife could obtain such employment at any time prior to this matter coming on for trial in September 2008. Further, on the basis of the affidavit material before me, I find that the wife has indeed been the primary home maker and caregiver for the children. She clearly wishes to continue in that role and, given that these are interim proceedings, she should be permitted to do so.
I turn now to consider the section 75(2) matters.
The wife is 48 years old and the husband is 54 years old. They are both in good health.
The husband has the physical and mental capacity to continue in his current employment as a music teacher and as a part-time musician. Indeed, there does not appear to be any reason why the husband cannot work longer hours than he presently works. Still, these are interim proceedings and, as appears below, the figures to be attributed to the parties’ income and expenditure for the period leading up to the trial have effectively been agreed.
Beyond the income that the wife receives from her homestay student, it is apparent that she has no significant earning capacity at the present time.
Given that these are interim proceedings, it is not necessary for me to analyse the parties’ assets and liabilities to any extent. On the basis of the evidence before me, however, I will make certain findings in relation to their respective income and expenditure.
The husband's income from his music and teaching amounts to $742 per week. He also receives $115 net per week from the homestay student for whom he is responsible. Given that he is obliged to pay income-tax of $126 per week and child support (to the wife) of $93 per week, it is clear that his overall net income is $638 per week. To this sum should be added the income from the [K] unit, being $280 per week. In other words, the husband's total net income from all sources is $918 per week.
The wife's income comprises the child support that she receives from the husband, totalling $93 per week, together with the amount of $115 net per week that she receives from the homestay student for whom she is responsible. In other words, the wife's total net income from all sources is $208 per week. I have, of course, disregarded the wife's entitlement to an income tested pension, allowance or benefit.
The parties have the following fixed expenses:
(a)[C] mortgage: $214 per week
(b)[C] rates: $40 per week
(c)[C] utilities: $120 per week
(d)[K] mortgage: $375 per week
(e)[K] rates and unit levies: $212 per week
(f)School fees (husband's obligation): $285 per week
(g)School fees (wife's obligation): $260 per week
The total of the above expenses is $1506 per week.
In addition to the fixed expenses to which I have referred, the parties have significant living expenses. It was agreed that a reasonable allowance for the husband's living expenses is $150 per week and that a similar allowance should be made for the wife's living expenses. It was also agreed that a reasonable allowance for the children's living expenses (excluding school fees) is $500 per week. In other words, the total of the family's living expenses is $800 per week.
It is clear beyond argument that the parties’ combined expenditure far exceeds their combined income. To that extent, their present financial position is untenable. They do not agree, however, as to the steps that must be taken to ameliorate their current financial distress. Clearly, matters such as these must be considered in the context of the final property settlement proceedings.
The husband argues that the wife has the benefit of a financial resource in the form of her mother's willingness to support her (and, apparently, the children) -- at least in the short term. Although I am not prepared to find that the wife's mother comprises a financial resource in the strict sense of that term, I recognise that the wife is not seeking orders which would have the effect of the husband paying for all her and the children's expenses. For example, she does not seek an order that the husband pay the children's expenses beyond the $93 per week that he is currently paying by way of child support. Nor does she seek (directly) an order that the husband pay her living expenses of $150 per week and her share of the school fees (amounting to $260 per week). I assume that the wife hopes to receive sufficient funds from her mother (and, no doubt, from government benefits) to cover these expenses.
In my view, none of the other provisions of section 75(2) are of particular significance at this time (and given that these are interim proceedings).
I am aware that any order that I may be minded to make for interim maintenance must be reasonable in all the circumstances of the case. The orders that I propose to make are those that I consider proper within the meaning and contemplation of section 74.
I find that the most appropriate way to approach the dispute now before me is to compare the parties’ income from all sources and to allocate relevant expenses between them in proportion to their income. To the extent that there is a shortfall between income and expenditure, that shortfall should be shared between the parties in the same proportions.
I have found that the husband's net income from all sources is $918 per week and that the wife's net income from all sources is $208 per week. Their total income, therefore, is $1126 per week. The husband's proportion of that figure is 82% and the wife's proportion is 18%. I shall round those figures to 80% to the husband and 20% to the wife.
Given that the wife does not seek orders to the effect that the husband meet her share of the children's school fees (which, I assume, will be paid by the wife's mother on an interim basis), I find that the amount of $260 per week should be deducted from the total of the parties’ fixed expenses. In other words, that figure should be reduced from $1506 per week to $1246 per week.
Also, given that the wife does not seek orders (directly) to the effect that the husband pay the shortfall between the children's expenses of $500 per week and the child support that she receives of $93 per week, and given that these expenses are discretionary amounts, I have decided to ignore the children’s expenses for the purpose of determining the interim orders that should adhere until trial. In any event, it is (generally speaking) inappropriate to seek additional child support in the form of spousal maintenance.
It follows that the only discretionary expenses that should be added to the total of the fixed expenses that I have determined above comprise the total of the living expenses for the husband and the wife -- being $300. Thus, the overall total of the parties’ expenses to be taken into account for the purposes of the orders currently sought is $1546 (being $1246 for fixed expenses and $300 for discretionary expenses).
I find that the overall total of $1546 should be met in the same proportions as the parties’ receive their respective net incomes. In other words, the husband should pay 80% of $1546, or approximately $1236 per week, and the wife should pay 20%, or approximately $310 per week.
I recognise, of course, that there is a significant shortfall between the total income and the total expenditure as I have found them to be for the purposes of these interim proceedings. That shortfall should be divided between the parties in the manner that I have described.
In my opinion, the wife's 20% expenditure obligation (as it were) -- amounting to $310 per week -- should comprise her living expenses of $150 per week, the [C] rates of $40 per week and the [C] utilities of $120 per week.
The husband's 80% expenditure obligation (as it were) -- amounting to $1236 per week -- should comprise his living expenses of $150 per week, the [C] mortgage of $214 per week, the [K] mortgage of $375 per week, the [K] rates and unit levies of $212 per week and his share of the children's school fees (being $285 per week).
Since I have found that the wife is currently the principal caregiver for the children, and given that:
(a)she currently receives government benefits relating to her care of the children;
(b)she has not claimed the shortfall between the child support that she receives from the husband (amounting to $93 per week) and the agreed costs associated with maintaining the children (amounting to $500 per week, excluding school fees); and
(c)she has not sought to recoup from the husband any part of the school fees that she currently pays for the children (amounting to $260 per week),
I find that it is both necessary and appropriate to make the injunction sought by the wife to the effect that the husband be restrained from applying for any portion of the government benefits paid to her for or in relation to her care of the children. If the husband were to apply for and obtain such benefits, then it is likely that the parties would have to return to court to re-litigate many of the issues dealt with in these Reasons. Such an outcome would create unnecessary inconvenience and expense for the parties, particularly when regard is had to the fact that a final hearing is to take place in September 2008 -- at which time all aspects of the parties’ financial relationship both prior to and after separation (and, of course, after the making of interim orders) can be considered and taken into account.
When I have regard to all the matters to which I have referred in these Reasons (and, in particular, the section 75(2) factors), I cannot help but be conscious of the lack of precision inherent within the determination of spousal maintenance and other issues such as those now before the court. Such imprecision inevitably infects the reasoning supporting awards of spousal maintenance. Still, I have done the best that I can on the basis of the material available to me, and having regard to the arguments presented by both the husband and counsel for the wife.
I propose to make the following orders:
(a)Until further order, the husband pay the following expenses as and when they shall fall due:
(i)all instalments under the Maxis Loans mortgage (or any other mortgage or loan) currently secured against the property at Property [C];
(ii)all instalments under the Maxis Loans mortgage (or any other mortgage or loan) currently secured against the property known as Property [K],Queensland; and
(iii)all rates, taxes, body corporate fees, unit levies and other expenses or outgoings (of any nature whatsoever) of or relating to the [K] unit.
(b)Until further order, the wife pay – as and when they shall fall due – the gas, electricity, water rates, Council rates, house property and contents insurance relating to the [C] property.
(c)Until further order, the husband be and is hereby restrained by injunction from applying for any portion of the family tax benefit or other government benefit currently paid to the wife to be paid to him instead of to the wife.
The record will note that, until further order –
(a)the husband is entitled to retain the income from the [K] unit (on the basis that he is obliged to meet the payments set out in the above orders);
(b)each party will continue to meet their obligations in relation to the children's school fees (the husband being obliged to pay $285 per week and the wife being obliged to pay $260 per week); and
(c)each party will continue to receive the board paid by, and meet the expenses associated with, the homestay student that he/she has recruited.
I shall also make the orders that I have foreshadowed setting the matter down for trial on 16 September 2008. Those orders include a requirement that the parties attend a conciliation conference on 19 June 2008. I have also directed that the matter be included in the duty list before Federal Magistrate Turner on 15 July 2008.
Having regard to the fact that the parties are currently living under the one roof (in what appears to be very strained circumstances), I am not prepared to make any orders -- at this stage -- regarding the time that the children are to spend with each of their parents. The subject was not argued before me. Time did not permit such an argument and, in any event, the wife had not properly responded to the husband's rather complex proposal in relation to the division of the children's time between them. The issue of children's orders generally can be raised before Federal Magistrate Turner when the matter comes before him in the duty list on 15 July 2008.
Finally, I confirm that both parties have consented to the making of an injunction restraining them from removing or attempting to remove the children from Australia. To that extent, I will make the usual watch list order.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Rachel Peattie
Date: 18 April 2008