Travers and Travers
[2018] FCCA 3417
•30 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAVERS & TRAVERS | [2018] FCCA 3417 |
| Catchwords: FAMILY LAW – Interim spousal maintenance application – orders made. |
| Legislation: Family Law Act 1975, ss.72, 74 and 75 |
| Cases cited: Uzunlar & Uzunlar [2017] FamCA 111 |
| Applicant: | MS TRAVERS |
| Respondent: | MR TRAVERS |
| File Number: | PAC 1949 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 27 September, 8 October 2018 |
| Date of Last Submission: | 8 October 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 30 October 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Kutasi of Solve Legal |
| The Respondent appeared in person |
ORDERS
Pending further Order, the husband shall pay to the wife the sum of $1,000 per week by way of interim spousal maintenance pursuant to section 74(1) of the Family Law Act 1975 (Cth).
The proceedings are adjourned for mention to 2 May 2019 at 11:30 am.
IT IS NOTED that publication of this judgment under the pseudonym Travers & Travers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1949 of 2018
| MS TRAVERS |
Applicant
And
| MR TRAVERS |
Respondent
REASONS FOR JUDGMENT
These are Reasons for Judgment in the matter of Travers & Travers. The Applicant wife, in her Initiating Application filed 7 May 2018, sought interim Orders as set out in that Application. Inter alia, she sought interim Orders that the Respondent husband pay to her $2,000 per week, and a one-off payment of $30,000. She also sought an Order that the husband take steps to have a certain motor vehicle, a Motor Vehicle 1, repaired and then advertised for sale. Proposed interim Order 3 sought by the wife, that the husband take no action to dispose of or in any way otherwise deal with any marital assets without the express written consent of the wife, was an interim Order that was previously made by the Court on 26 June 2018. The husband’s Response filed 29 June 2018, sought interim Orders, inter alia, that “all interim or procedural orders sought by the applicant are dropped and not pursued further in future”.
There have been numerous Court appearances in these proceedings in relation to the proposed interim Orders sought by the wife, with the husband appearing on most but not all of those court events.
At the interim hearing, the wife, in relation to proposed interim Order 1 in her Initiating Application, sought to bring those proposed Orders under the rubric of interim spousal maintenance and lump sum spousal maintenance. The Court has treated the wife’s proposed applications in proposed interim Order 1 on that basis.
The wife’s material comprises her Financial Statement filed 7 May 2018 and four Affidavits, together with a lengthy affidavit from her solicitor filed 3 August 2018. She also relied on Exhibit A, being certain tax invoices, copy tax invoices, in relation to a business said to be now operated by the husband.
The husband has merely relied upon a short Affidavit filed 29 June 2018 and the accompanying Financial Statement filed the same date. He has, despite numerous opportunities given to him by the Court, failed to respond in any meaningful way to the considerable affidavit evidence filed on behalf of the wife.
Turning to the wife’s affidavit material, the wife firstly relies on an Affidavit filed 7 May 2018. She states that she is now 46 years of age. The husband (from his Affidavit) is aged 49 years of age. There are no children of the parties’ relationship, which commenced in [date] 2011 through their marriage, with the parties separating on a permanent basis in about mid-February 2018.
The husband operates his own business as an [occupation omitted].
The parties were each employed full-time during the marriage and maintained separate bank accounts. The husband was declared bankrupt in [date] 2013, with the bankruptcy being discharged in [date] 2016. As a consequence of this bankruptcy event, the parties agreed that all assets of the marriage would be registered in the wife’s personal name only, as far as possible. This meant that the business [Business A] and all real estate and other personal property was registered solely in the wife’s name. The wife states in her first Affidavit filed 7 May 2018 that “the corollary of this was that all loans for such property are also in her name”. The wife states that the husband was given an [Business A] Visa debit card, from which he regularly deducted moneys at his whim.
The wife asserts that at the commencement of the marriage, both parties had very few assets. She states that the major source of the income for the parties during the marriage was the [Business A] business, which the husband operated. [Business A] was incorporated in 2012. The wife asserts that from inception, that business turned over an average of half a million dollars per annum, with the business operating on an average net profit margin of sixty percent. The business, she asserts, had very low overheads. She asserts that essentially the husband provided [services omitted]. She states that the parties’ only outgoings were rent, equipment and a small volume of [business products]. She annexes a recent copy of the [Business A] bank account, showing about $7,000 in income to [Business A] each week, prior to the separation and the husband starting a new business.
The wife asserts (paragraph 15) that she was only able to borrow the money and incur the debts that she has because of her shareholding and directorship of [Business A]. She asserts that once the husband turned this “tap” off in February, her financial position has become dire.
The wife asserts that she was employed at the time of the marriage as a [occupation omitted] at [employer omitted], and she was on a salary of about $130,000.
The husband demanded that she resign from her employment in 2012 to stay home and attend the housekeeping duties. This followed nearly twelve months of discussions related to this issue. The wife was very reluctant to cease working. She asserts that in [date] 2012, without the wife’s knowledge or approval, the husband simply attended her workplace and told the wife’s manager that the wife was not coming back to work. The wife asserts that this was how she found out she had resigned from her employment. She did not work again until [date] 2014 when she opened a [Business B], which the husband was very opposed to. The [Business B] never made a profit. The wife sold the business in [date] 2017.
In relation to motor vehicles, the wife asserts the husband is a car enthusiast. She asserts that ever since she met him, he had loved everything to do with high-performance motor vehicles. She asserts that this manifested itself in an increasing desire by the husband to purchase new or second-hand high-performance vehicles. The wife then asserts at paragraphs 26 to 30 of her said Affidavit that from about Mother’s Day 2014 through to December 2017, the husband insisted upon her purchasing various expensive motor vehicles, including an [Vehicles Omitted]. All these vehicles were purchased in the wife’s name using finance from various financial organisations, including through the motor vehicle manufacturer.
The wife asserts that because several of these motor vehicles were recent purchases, they have suffered from substantial depreciation in the short term. She asserts therefore that the current value of these vehicles is less than the value of the liabilities, and it is therefore not prudent to sell them short, nor even, the wife asserts, would she even have the money to fulfil a shortfall to the financiers.
The wife asserts that her living expenses are presently significantly lower than what her living expenses were during the relationship.
Post separation, the wife asserts that there was an agreement in about March 2018 with the husband that they would need to sell a number of their cars in order to pay down debt, but otherwise the husband would continue to generate income through the [Business A] business in order to meet their other liabilities. The wife asserts that in early March 2018 she became aware that [Business A] was not generating any income, and further, that their debts were not being serviced. She asserts that she telephoned her husband and had a conversation in which she asserted, inter alia, to the husband that there was no money coming into the [Business A] account and she was getting letters from the banks about their loans. She asked the husband what was going on. The husband told her that he had started a new business and taken all his clients with him. He stated to the wife that he was not going to pay for her any more. The wife responded incredulously, stating that the parties had bought everything in her name and that the husband knew that. She stated to the husband that she could not meet the loan repayments on her income alone. The husband replied that that was not his problem and it sounded like the wife should declare bankruptcy.
The wife asserts that she conducted a search of the ASIC and Australian Business Registers and learned that the husband has established a new business trading as “[Business A]” in his own name.
The wife asserts that since about mid-February 2018 she has received no payments from the husband but for roughly $2,000 in total. She asserts further that the husband has not made any payments in respect of servicing their debts whatsoever.
In about mid-March 2018 the husband sent the wife a screenshot of the banking app on his telephone which indicated that he had several new bank accounts in her personal name, one of which was a Business account which showed some $3,919.23 in the current balance in cheques that had been deposited but were yet to clear. The wife asserts that this was consistent with the earnings that [Business A] was making prior to their separation. The wife asserts that the husband’s account with [client] was still linked to her personal email, so she received notice in late April 2018 that the husband had made an enquiry to purchase a motor vehicle through private sale for about $26,000. Further, in about late April 2018, she became aware that the husband had posted a message to his Instagram account boasting that he had purchased a [vehicle].
The wife asserts that she is receiving letters from banks and finance companies demanding payments or otherwise they will foreclose upon her. She asserts that she is on the verge of defaulting on several of those loans and getting a bad personal credit report. She asserts she is also now overdue on her rent and she is facing a possible eviction of her teenage daughter and herself as a matter of imminent threat. She asserts that this is all extremely stressful and she is not sleeping at night. She seeks urgent interim Orders from the Court.
In the wife’s Affidavit filed 17 May 2018 she asserts, inter alia, that she is currently in considerable financial difficulty as a consequence of the actions of the husband. She asserts that these problems have only worsened since her first Affidavit and Financial Statement.
She refers to a finance company, which assisted with the purchase of a property at Property M that the wife jointly owns with her mother, who lives in the property. She asserts that the current weekly mortgage repayment sum due is some $374. She asserts that she has not been able to make those payments since early January 2018. The current amount overdue is about $5,245, which is escalating weekly with fees and charges.
She refers to a property at Property N which is financed by the [Bank], with an account currently overdue by some $5,072. The wife asserts she has placed the Property N property on the market as an emergency measure. She refers to the motor vehicle, being the Motor Vehicle 2, which is financed through [Bank 2]. She refers to an outstanding loan on that vehicle of some $15,629. She gives an estimate of the current market value of that car to be about $170,000. She asserts that this is one of the only vehicles that the parties own which could be sold today at a profit. She asserts that the problem, however, is that the car requires significant repairs to its fuel pump and cannot be driven without this repair work. She asserts that she does not have the cash to afford these repairs and therefore cannot sell the vehicle. The wife asserts that she has notified [Bank 2] that she intends to sell the vehicle and that they have therefore stopped sending her notices about the overdue repayments and defaults.
The wife refers to the Motor Vehicle 1, which is financed by [Bank 2]. She asserts the current market value of that car to be about between $90,000 and $100,000. However, she refers to the husband taking possession of this vehicle in early March 2018, with the wife not having seen it since. The wife asserts that she had allowed the husband to take it at the time because he said he was going to take full responsibility for the repayments of same. However, he did not honour this commitment. The wife asserts that in early April 2018, the husband sent her an email stating, inter alia, that this motor vehicle was now sold. He asserts in that email that he could not get registration papers for the car and that no one would reply, so he had sold the vehicle for some $15,000. The wife asserts that she cannot sell this vehicle because she does not know where it is, nor is she aware of its condition. The wife proceeds in this Affidavit to discuss some of the other motor vehicles. In particular, she refers to the car that she drives, an Motor Vehicle 2, which she bought for her job. The wife asserts that she has been directing her meagre income to ensure that there is no chance of her defaulting on this loan as she will lose her job as a [occupation omitted] if she does not have a vehicle. She asserts that the current weekly repayments are $272 to [finance company].
She refers to indebtedness in relation to the Motor Vehicle 4 and the Motor Vehicle 5 and the respective indebtedness on loans for those motor vehicles.
The wife refers to certain bank overdraft debts which she currently has, in particular with [Bank]. She refers to her personal loan to the [Bank]. She refers to herself being unable to meet her rental obligations at her home at Suburb O and she faces potential eviction. Her financial statement indicates she pays $950 per week. She states she has commenced looking for alternative accommodation which is cheaper, but in any event, she asserts she will have removal costs, such funds which she simply does not currently have. The wife refers to utility bills she has and credit card bills.
The wife asserts she is facing imminent personal financial ruin. She asserts she is still receiving letters from banks and finance companies, demanding payments or otherwise they will foreclose upon her. She asserts she is on the verge of defaulting on several of these loans and getting a bad personal credit report. She again states she is overdue on her rent and she is facing a possible eviction of her teenage daughter and herself as a matter of imminent threat.
She seeks that the husband pay to her some $46,000 as a matter of urgency, calculated by reference to the total outstanding arrears on various items of property, including real estate and cars. She asserts that an ongoing payment of $2,000 per week by the husband to the wife will enable her to keep pace with the future repayments until final Orders can be obtained in these proceedings. The Court interpolates at this point that in the wife’s Initiating Application she seeks final Orders that within 42 days of the date of these Orders, the husband pay $500,000 to her. She also seeks final Orders that she be granted title to any and all chattels and other items of personal property located at the property at Suburb O.
In the wife’s Affidavit filed 13 September 2018 she asserts, inter alia, that this is her third Affidavit in these proceedings. She asserts she is currently in considerable financial difficulty because of the actions of the husband and that these financial problems have only worsened since her last affidavits.
She again refers to relevant mortgages, including the [finance company], which assisted with the purchase of the Property M property that the wife jointly owns with her mother, who lives in that property. She annexes to her Affidavit documents relating to [finance company] commencing proceedings in the Supreme Court of New South Wales on 30 July 2018 to have this property repossessed.
The wife refers to the property at Property N being sold for $470,000 on 26 August 2018. She asserts the sale price only netted a difference of $35,000 from the outstanding loan balance. This amount has therefore not provided the wife with anything but temporary relief from her overall debt position. The wife asserts that in recent months she has taken out unsecured personal loans with friends to cover her cash flow problems in the short term. She asserts she currently owes her mother $5,000, some friends almost $4,000, and another group of friends $5,000. She asserts additionally that she has incurred a debt of over $5,000 to [Mechanics] for repairs to the Motor Vehicle 2 which were necessary in order to enable it to be placed on the market for sale. (The Court interpolates at this point that by reference to the wife’s most recent Affidavit filed on 7 October 2018, it would appear that the Motor Vehicle 2 has not yet been sold, as in paragraph 6 of that Affidavit the wife asserts that she is currently in arrears to [Bank] to a total of some $25,000 in respect of that vehicle.)
The wife refers to the Motor Vehicle 1; she asserts that in [date] 2018 the husband posted a photograph to his Facebook account which depicts this car and a young girl sitting on the boot of his car. The wife asserts she is familiar with this girl, who is the daughter of a friend of the husband’s. The wife asserts that this photograph must be recent and she in effect submits that the husband knows where the car is and has been in its presence recently. (The Court interpolates at this point that this photograph showing the young girl sitting on the car is equivocal in that it does not necessarily indicate that the husband’s previous statement to the wife and her solicitors that he has sold this vehicle for $15,000 is incorrect.)
The wife asserts that the husband continues to work and earn an income. She asserts that in late August 2018 she received an email from a woman at the [company], sent to her in error, asking the husband to invoice them for work he recently performed. The wife asserts that she cannot wait any longer to obtain interim Orders in these proceedings. She says she is likely to enter into personal insolvency within weeks should she not receive satisfaction from the Court or the husband.
In the wife’s last filed Affidavit filed 7 October 2018, she refers to and annexes certain documentary records relating to her current indebtedness in relation to the four motor vehicles, including the Motor Vehicle 2 and the Motor Vehicle 1.
Again, the husband has only filed one short Affidavit, on 29 June 2018, together with a Financial Statement filed the same date.
In the husband’s Affidavit, he states inter alia that during the marriage, all assets were in the wife’s name, as well as the wife’s company’s name. He asserts that the wife controlled all financial liabilities, assets and banking. He refers to certain assets in the wife’s name during the marriage. The husband refers to certain events since separation. He asserts that his diabetes has been out of control due to stress and not related to his diet. He also refers to severe depression and stomach ulcers, with a burst stomach ulcer in [date] 2018. He says he spent one full week in Hospital as a result of this, which also affected his ability to work. He asserts that he was admitted back into hospital the following week due to complications and will need further treatment soon. The Court interpolates at this point, again, that the husband has been given every opportunity to file and serve not only affidavit material in response to the considerable affidavit material of the wife, in relation in particular to financial issues, but also in relation to his health position. He has not taken up the opportunity to do so.
The husband’s Financial Statement filed 29 June 2018 states that his total average weekly income is $950, with his total personal expenditure on a weekly basis being $900. He states that he is a [occupation omitted]. He is self-employed with [Business A]. He has been employed four months as such. He refers to minimal property owned by him. He refers to modest superannuation of some almost $14,000. He asserts that he has got some liabilities of some $8,300.
Legal principles
The Court refers to a helpful decision of McClellan J in the Family Court of Australia, being the decision of Uzunlar [2017] FamCA 111 (2 March 2017). The Court refers to his Honour’s discussion of relevant legal principle in relation to spousal maintenance, and in particular, interim spousal maintenance and the case law in relation thereto. Inter alia, his Honour refers to relevant statutory provisions under the Family Law Act 1975 (Cth) (“the Act”) relating to interim spousal maintenance, including sections 72, 74 and 75(2) of the Act. He refers helpfully to the usual issues to be determined in respect to spousal maintenance.
The Court refers firstly to the terms of section 72(1) of the Act.
The Court is satisfied that the wife is unable to support herself adequately by reason of her present inability to meet her loan repayment obligations and other financial obligations as previously referred to, including rental obligations. By reference to the wife’s Financial Statement filed 7 May 2018 it can be seen, noting that the Property N property has been sold and thereby her rental income from that property has now disappeared, and further that her mortgage repayment obligations in respect of that property have disappeared, that her present total average weekly income is about $1,464 ($1,864 less $400 rental from the Property N property now sold). It can be seen that her total personal expenditure on a weekly basis is now some $3,531 ($4,005 less $474, being the former loan repayment to [Bank] in respect to the Property N property). Accordingly, she has a current excess of weekly expenditure over weekly income of some $2,067.
In making the finding above in relation to the wife’s inability to support herself adequately, the Court has had regard to relevant factors in section 75(2) of the Act. It has had regard to the wife’s age and her income, property and financial resources. It has taken into account the fact that although the wife is presently in paid employment, the current level of her income in that employment is insufficient to discharge, on a weekly basis, her outstanding financial obligations.
It has taken into account the fact that the wife’s daughter is living with her in the Suburb O rental property. The Court has taken into account, as far as the evidence before the Court presently allows it to do so, the apparent contribution made by the wife during the relationship to the financial support of the parties through her employments from time to time. The Court has taken into account the duration of this relatively short marriage, including the wife ceasing work at the insistence of the husband for a period with an apparent reduction in her annual income as a result.
The Court has taken into account, under section 75(2)(o), the wife having been coerced by the husband into purchasing various assets in her name including expensive motor vehicles. The Court has taken into account the wife’s need for one of the motor vehicles (the Motor Vehicle 2) for the maintenance of her present work position as a [occupation omitted]. The Court has taken into account, again, the wife’s rental obligations at her present rental property at Suburb O from which she faces potential eviction. The Court has taken into account, under section 75(2)(o), the demands by various financial institutions for payment of arrears of loan moneys owing by the wife, otherwise they will foreclose upon her, and that the wife is on the verge of defaulting on several of these loans and getting a bad personal credit report.
Turning to section 74(1) of the Act, it is now necessary for the Court to consider the reasonable needs of the wife. The Court notes the provisions of section 75(1) of the Act providing that, in exercising jurisdiction under section 74, the Court shall take into account only the matters referred to in section 75(2) of the Act. By reference to the wife’s affidavit evidence in relation to her present loan repayment obligations to relevant financial institutions, and noting the Court’s discussion above in relation to the wife’s present excess of weekly expenditure over weekly income of some $2,067, the Court finds that the wife’s present reasonable needs are some $2,067.
The Court has not overlooked, in this context of the wife’s reasonable needs, that such needs may change in the near future if some of the wife’s assets are sold, having the result of decreasing the wife’s usual weekly loan repayment obligations. For example, her evidence indicates that she is endeavouring to sell the Motor Vehicle 2. Again, it is apparent from the wife’s latest affidavit evidence that such sale has not yet been effected.
The Court now turns to the husband’s capacity to meet a spousal maintenance order if such an order is made. Again, by reference to the husband’s Financial Statement filed 29 June 2018, he asserts that, in effect, he has no capacity to pay spousal maintenance because his total average weekly income of $950 is matched by total personal expenditure of some $900. By reference to those two figures, the husband has an excess of income of $50 per week over his usual weekly personal expenditure.
The wife contends, at this interim hearing, that those assertions in the husband’s Financial Statement are clearly incorrect by reference to objective financial information presently before the Court, and in particular, referred to in the Affidavit of the wife’s solicitor filed 3 August 2018.
Turning to that Affidavit of the wife’s solicitor, the solicitor contends, in paragraph 9 of that affidavit under the heading “Mr Travers’ True Financial Position”, that a copy of bank records for the husband between 26 February 2018 and 29 June 2018 (a four month period), which are annexed to his Affidavit, indicate that in this four month period the husband received a total of some $62,000 in revenue and/or income; he withdrew a total of almost $30,000 from ATMs around Sydney; he travelled on at least two occasions by air to Victoria; since June 2018 he has been paying $500 per week to [finance company]; and he bought at least $2,600 worth of furniture.
The solicitor further asserts that a copy of invoices rendered by the husband to [client] between mid-July 2017 and late June 2018, which are annexed to his Affidavit, confirm the accuracy of the bank records (annexed to his Affidavit) and show that the husband’s business has continued without disruption since he separated from the wife. The solicitor asserts that these invoices also confirm that the husband does not buy [products] for his [business] so that he has very few overheads. He asserts that essentially nearly all of the husband’s business income is profit. The Court has had regard to that Affidavit and all the annexed material annexed to it.
Again the husband has, despite Court directions giving him the opportunity to do so, failed to respond, not only to this Affidavit of the wife’s solicitor, but he has also failed to significantly respond to all the wife’s own Affidavits. In the circumstances, and following relevant legal authority, the Court is entitled, in determining the wife’s spousal maintenance application, to take a more robust approach by reason of the above failures by the husband to respond to the wife’s and solicitor’s evidence, including bank record information of the husband.
By reference to the financial information annexed to the wife’s solicitor’s Affidavit, including the assertions of the wife’s solicitor in his Affidavit, it is readily apparent that the husband’s limited financial information in his Financial Statement filed 29 June 2018, significantly, are incorrect. That is, the husband’s assertion in his Financial Statement that his total average weekly income is only $950 would appear to be significantly understated.
The Court notes the husband’s assertion in his Financial Statement that his total weekly personal expenditure is some $900. The only comment that the Court would make in relation to that figure is that it would appear, by reference to bank statement material annexed to the wife’s solicitor’s Affidavit, that he has recently begun to incur, that is, from about 18 June 2018, a weekly financial obligation of some $500 to [finance company].
By reference to the wife’s solicitor’s Affidavit at paragraph 9 in particular, again, which refers to extensive bank records of the husband’s business annexed to the wife’s solicitor’s Affidavit, certain mathematical calculations can be made. In that four month period between late February 2018 and late June 2018, the husband received about $62,000 in revenue and/or income in his business. That translates to a gross income of about $186,000 per annum. When one deducts income tax from that gross figure together with the Medicare contribution, one is left with a net figure of some $125,000. Taking for the moment the husband’s assertion of personal total weekly expenditure of some $900 (see his financial statement) that translates to an annualised figure of some $46,800. With that figure of $46,800 being deducted from the earlier figure of $125,000, a further net figure of $78,000 per annum is reached. When such a figure of $78,000 is divided by 52 weeks, a figure of $1,500 per week is arrived at. When one deducts the more recent weekly obligation of the husband to [finance company] of $500 per week, one is left with a net weekly figure of $1,000, which sum would be available for the husband to pay the wife by way of weekly interim spousal maintenance.
The Court has taken into account, in reaching this figure of net $1,000 per week, by reference to paragraph 11 in the wife’s solicitor’s Affidavit, that the relevant invoices annexed to the wife’s solicitor’s Affidavit, relating to the husband’s present business, confirm that the husband does not buy [products] for his clients so that he has very few overheads. The Court has taken into account the wife’s solicitor’s assertion, therefore, that essentially nearly all of the husband’s business income is profit. Accordingly, the Court finds that the husband has an ability to pay interim spousal maintenance of $1,000 net per week.
The Court, again, in exercising its jurisdiction under section 74 of the Act, must take into account the relevant matters set out in section 75(2) of the Act.
Turning to section 75(2), the Court has taken into account the age of the husband. The Court has not overlooked the fact that the husband apparently suffers from diabetes and that he has had some recent health problems. However, the Court notes in relation to the husband’s health that he has failed to file and serve any relevant health material relating to what he orally contended at Court previously was his parlous health. He has had ample opportunity to put on this material relating to his health and he has failed to do so. The Court has before it, from the wife’s side, extensive material relating to the successful continuation of the husband’s business and receipt of considerable income in that business. It would appear, from that material, that the husband presently has the physical and mental capacity for the continued successful operation of his business.
Again, the Court has had regard to the husband’s Financial Statement, where he indicates that his weekly total personal expenditure is some $900. And further, the Court has added to that figure of $900 the figure of $500 per week relating to the weekly apparent financial obligation of the husband to [finance company]. The Court has taken into account, to the extent to which the evidence before the Court enables it to do so, the wife’s apparent contribution to the financial life of the parties during the relationship including her employment from time to time. The Court has taken into account, again, the wife’s, at the insistence of the husband, giving up more lucrative employment. The Court has taken into account under section 75(2)(o) the fact that the wife appears to have been coerced, or at least has taken into account the significant suggestion on the material before the Court that the wife was coerced into buying various motor vehicles in her name with consequential financial obligations attached to such motor vehicles. The Court has also taken into account the apparent financial reality during this relationship that the wife was reliant, to a significant extent, upon the husband’s income to service the various loans in her name relating to motor vehicles and other property. The Court takes into account under section 75(2)(o) the apparent real risk that the wife might go into bankruptcy with consequential adverse credit ratings applicable to her if she is unable to financially support relevant loan repayments for various financial institutions. The Court takes into account the wife’s apparent precarious rental situation at Suburb O with her daughter.
The Court takes into account under section 75(2)(o) the wife’s evidence that she needs the Motor Vehicle 2 for her job as a [occupation omitted]. The Court takes into account the wife’s contention, in paragraph 49 of her Affidavit filed 17 May 2018, that an ongoing significant payment each week by the husband to herself will enable her to keep pace with future repayments until final Orders can be obtained in these proceedings.
The Court is of the view, by reference to matters discussed above, that it will be proper for the husband to make a weekly interim spousal maintenance payment of $1,000 per week to the wife under section 74(1) of the Act.
The wife’s other proposed interim Orders can now be considered briefly. She seeks a one-off payment of $30,000 to herself. There is presently insufficient evidence before the Court to suggest that the husband has such cash funds, or even lesser cash funds, presently available to meet such an Order or even a reduced lump sum spousal maintenance Order. There is insufficient material before the Court to indicate that the husband presently has a particular asset or assets that could be sold to enable such an Order to be made, whether for $30,000 or for a lesser lump sum amount. Having stated this, the Court still confirms its above finding that the husband has a present ability to pay interim spousal maintenance of $1,000 per week to the wife.
As to the proposed interim Order 2 in the wife’s application in relation to the Motor Vehicle 1, unfortunately the evidence before the Court would appear to indicate that the husband has sold this motor vehicle for some $15,000. It may well be that the sale of such motor vehicle can be taken into account by the wife in her ultimate property proceedings against the husband.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 28 November 2018
0