UNDERHILL & HAGAR

[2019] FCCA 3505

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNDERHILL & HAGAR [2019] FCCA 3505

Catchwords:
FAMILY LAW – Property – de facto spousal maintenance application – relationship of approximately two years in duration – one child of relationship aged 14 months living with Applicant – assessment of s.90SF(3) factors.

Legislation:

Family Law Act 1975 (Cth), ss.44, 90SB, 90SD, 90SE, 90SF, 90SS

Applicant: MS UNDERHILL

Respondent: MR HAGAR

File Number: MLC 11947 of 2019

Judgment of: Judge C. E. Kirton QC

Hearing date: 27 November 2019

Date of Last Submission: 27 November 2019

Delivered at: Melbourne

Delivered on: 5 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Glezakos

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr King

ORDERS

1. Until further order, the Respondent pay to the Applicant, by way of maintenance pursuant to s.90SE of the Family Law Act 1975 (Cth), the sum of $480.00 per week commencing 9 December 2019, with such payments to be made each Monday by direct deposit to the Applicant’s nominated bank account.

2. On or before 4:00 pm 20 December 2019 the Respondent electronically file and serve an Amended Response and any Affidavit on which he intends to rely.

3. The matter be adjourned for mention to the Duty List of the Federal Circuit Court of Australia on 27 March 2020 at 9.45 am for Directions.

AND THE COURT NOTES THAT:

A.For the avoidance of doubt, the payment of maintenance by the Respondent to the Applicant as set out in Order 1 does not negative the Respondent’s obligation to pay child support to the Applicant, but otherwise is payable in lieu of any other periodic support otherwise being paid by the Respondent for the benefit of the Applicant.

IT IS NOTED that publication of this judgment under the pseudonym Underhill & Hagar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11947 of 2019

MS UNDERHILL

Applicant

and

MR HAGAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are property proceedings brought by the Applicant (Wife) against the Respondent (Husband). This interim hearing is an application by the Wife for maintenance pursuant to s.90SE of the Family Law Act 1975 (Cth) (Act).

Issue to be Determined

1. The Wife seeks an interim order that the Husband pay to the Wife $700 a week by way of periodic spousal maintenance into a bank account nominated by the Wife[1].

   [1] Initiating Application, filed 23.10.19, Interim Orders, at [6].

Synopsis

1. I have made an order for interim periodic maintenance pursuant to s.90SE of the Act in the sum of $480.00 a week commencing from 9 December 2019.

Background

1. The Wife was born on … 1981 in Country L and is 38 years of age.  The Wife arrived in Australia on … 2017 on a student visa and she is currently on a bridging Visa A for Protection 866.  The Wife also has a Bridging Visa C from a partner Visa Application[2].

   [2] Wife’s Affidavit, filed 22.10.19, at [2].

2. The Husband was born in Australia on … 1987 and is 32 years of age.

3. The parties started a relationship in about … 2017 and commenced cohabitation in about … 2017.  There is one child of the relationship X, born on … 2018 (X).  After the birth of X, the Wife became X’s primary carer.

4. The Wife and the Husband separated on 29 September 2019[3] or 5 October 2019[4].

   [3] Response to Initiating Application, at [19].

   [4] Wife’s Affidavit, filed 22.10.19, at [7].

Procedural History

1. The Wife filed an Initiating Application on 23 October 2019 (Initiating Application) seeking interim orders that:

   a)The Husband be restrained from disbursing any funds held in the account of Real Estate Agent, Suburb M and/or the account of any other agent, conveyancer or legal practitioner in relation to the sale of B Street, Suburb C, (B Street, Suburb C) without further order of the Court or the written consent of the Wife.

   b)The sale proceeds from the settlement of the B Street, Suburb C be deposited into the trust account of the Wife’s solicitors and not disbursed without further order of the Court or by written agreement of both parties.

   c)The Husband provide to the Wife’s solicitors a copy of the Contract of Sale and any other purchase documents relevant to the sale of the B Street, Suburb C property within 48 hours of such written request by the Wife’s solicitors.

   d)Pursuant to s.90SG of the Act the Husband pay the Wife a lump sum payment of $20,000 within 14 days of the date of the orders.

   e)The Husband pay the Wife $700 per week by way of periodic spousal maintenance with the first of such payments to be made on the first Monday following the making of the order into a bank account nominated by the  Wife.

   f)Until further order, the Husband be restrained by injunction from selling, mortgaging or in any way charging or disposing of any assets in his name or standing to his credit in any partnership, company or trust without the prior approval of the Court or the prior approval of the Wife in writing.

2. The Initiating Application sought final orders that there be a just and equitable division of property pursuant to s.90SM of the Act.

3. The Wife also filed an Affidavit[5] (Wife’s First Affidavit) and a Financial Statement[6] (Wife’s Financial Statement) in support of the Initiating Application.

   [5] Wife’s Affidavit, filed 22.10.19.

   [6] Wife’s Financial Statement, filed 22.10.19.

4. The proceeding first came before the Court on 30 October 2019.  On that occasion the Wife was represented by a Solicitor and the Husband was self-represented.  The Court ordered that until further order:

   a)The Husband be restrained pursuant to s.90SS(1)(k) of the Act from disbursing any funds held in the account of Real Estate Agent, Suburb M and/or the account of any other agent, conveyancer or legal practitioner in relation to the sale and purchase of the B Street, Suburb C without further order of the Court or the written consent of the Wife.

   b)The sale proceeds from the settlement of the B Street, Suburb C be deposited into the trust account of the Wife’s solicitors and not disbursed without further order of the Court or by written agreement of both parties.

5. The Court also ordered that:

   a)The Husband provide to the Wife’s solicitors a copy of the Contract of Sale and any other purchase documents relevant to the sale of the B Street, Suburb C within 48 hours of the Order.

   b)The proceeding be adjourned to 27 November 2019 for Mention.

   c)The Husband file and serve a Response, Financial Statement, Notice of Risk (if relevant) and any affidavit material on which he sought to rely within 21 days.

   d)The Husband file and serve a Notice of Address for Service that day.

6. On 18 November 2019 the Husband filed a Response to Application for Final Orders (Response), a Financial Statement (Husband’s Financial Statement) and an affidavit (Husband’s Affidavit).  These documents were filed again on 21 November 2019.

7. On 22 November 2019 the Wife filed a further affidavit (Wife’s Second Affidavit).

8. The proceeding came before the Court for the second time on 27 November 2019 in the Duty List.  On that occasion both the Wife and the Husband were represented by Counsel and the Wife pursued her application for spousal maintenance as set out in paragraph 8(e). 

9. On 27 November 2019 the Court made Orders by consent:

   a)Discharging the Orders referred to in sub-paragraphs 8(a) and (b).

   b)That the sale proceeds from the settlement of the B Street, Suburb C (including any deposit) be deposited into the trust account of Nevitt Ford Lawyers and not disbursed without further order of the Court or by written agreement of both parties.

10. The Court also made orders:

    a)Listing the matter for final hearing on 1 March 2021.

    b)Listing the matter for a Conciliation Conference with a Registrar of the Court on a date to be advised.

    c)Making trial directions and directions for the conduct of the Conciliation Conference.

    d)Reserving Judgment in relation to the Wife’s application for spousal maintenance

The Law

1. The law in relation to spousal maintenance for parties involved in a de facto relationship is located in Part VIIIAB of the Act. Section 90SS(1)(b) of the Act provides that the Court may make an order for the payment of weekly, monthly, yearly or other periodic sum.

2. The power of the Court to make a spousal maintenance order is contained in s.90SE(1) of the Act which provides:

   After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.

3. Before an order may be made pursuant to s.90SE(1) the geographical requirement in s.90SD of the Act must be satisfied. Section 90SD(1) provides:

   A court may make an order under section 90SE or 90SG in relation to a de facto relationship only if the court is satisfied:

   (a)that either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the order was made (the application time); and

   (b)      that either:

   (i)both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or

   (ii)the applicant for the order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

   in one or more States or Territories that are participating jurisdictions at the application time;

   […]

4. In this this case both the Wife and the Husband were ordinarily resident in the State of Victoria throughout the de facto relationship. Therefore the geographical requirement in s.90SD(1) is satisfied.

5. Further, before an order may be made pursuant to s.90SE(1), the Court must be satisfied of at least one of the matters in s.90SB. Section 90SB provides:

   A court may make an order under section 90SE, 90SG or 90SM, or a declaration under 90SL, in relation to a de facto relationship only if the court is satisfied:

   (a)that the period, or the total of the periods, of the de facto  relationship is at least 2 years; or

   (b)      there is a child of the de facto relationship; or

   (c)      that:

   (i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and

   (iii)a failure to make the order or declaration would result in serious injustice to the applicant; or

   (d)that the relationship is or was registered under a prescribed law of a State or Territory.

6. In this case, by reason of the birth of X, there is a child of the de facto relationship and therefore s.90SB(b) is satisfied.

7. Before making an order pursuant to s.90SE(1) the Court must also be satisfied in relation to the matters in s.44(5) and (6) of the Act, concerning time limits on proceedings in relation to de facto relationships. These sub-sections provide:

   44(5)Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG, or 90SM, or a declaration under section 90SL, only if:

   (a)the application is made within the period (the standard application period) of:

   (i)2 years after the end of the de facto relationship; or

   (ii)12 months after a financial agreement between the parties to the defector relationship was set aside, or found to be invalid, as the case may be; or

   (b)both parties to the defector relationship consent to the application.

   […]

   44(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

   (a)hardship would be caused to the party or a child if leave were not granted; or

   (b)in the case of an application for an order for the maintenance of the party - the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

8. In this case the Wife contends that the date of separation was 5 October 2019[7] and the Husband contends the date of separation was 29 September 2019[8]. On either account, the Initiating Application has been filed within the two-year period after the end of the de facto relationship: s.44(5)(a)(i). Therefore this requirement has been satisfied.

   [7] Initiating Application, at [27].

   [8] Response, at [19].

9. Section 90SF of the Act sets out the matters that the Court must take into consideration when exercising jurisdiction under s.90SE. Section 90SF(1) provides that:

   […] the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:

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

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

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

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

   (iii) for any other adequate reason.

10. In applying the principle referred to in s.90SF(1), s.90SF(2) requires that the Court must only take into account the matters referred to in s.90SF(3).

11. Section 90SF(3) provides:

    The matters to be so taken into account are:

    a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and

    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; and

    (c)  whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and

    (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; and

    (e)  the responsibilities of either party to support any other person; and

    (f)  subject to subsection (4), 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; and

    (g)a standard of living that in all the circumstances is reasonable; and

    (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; and

    (i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

    (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; and

    (k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

    (l)the need to protect a party who wishes to continue that party's role as a parent; and

    (m)  if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

    (n)  the terms of any order made or proposed to be made under section 90SM in relation to:

    (i)the property of the parties; or

    (ii)vested bankruptcy property in relation to a bankrupt party; and

    (o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:

    (i)  a party to the subject de facto relationship (in relation to another de facto relationship); or

    (ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or

    (iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

    (iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

    (p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:

    (i)  a party to the subject de facto relationship; or

    (ii)  a person who is a party to a marriage with a party to the subject de facto relationship; or

    (iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and

(r)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(s)  the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and

(t)  the terms of any financial agreement that is binding on a party to the subject de facto relationship.

1. In exercising its jurisdiction under s.90SE, the Court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit: s.90SF(4).

Consideration – Section 90SF(3)

1. I will now consider each of the matters in s.90SF(3) as far as they are relevant.

Section 90SF(3)(a) the age and state of health of each of the parties to the de facto relationship;

1. The Wife is 38 years of age, having been born on … 1981.  The Husband is 32 years of age, having been born on … 1987.

2. There is no evidence before the Court as to the state of health of either party. 

Section 90SF(3)(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;

Wife

1. The Wife receives $519 a week ($1,038 a fortnight) from a research excellence scholarship from University (Scholarship Income).  The Scholarship Income is non-taxable income[9].  The Wife is not eligible for Centrelink benefits because she is on  a Bridging Visa A protection 866[10].  At the time of deposing to the Wife’s Financial Statement, the Wife had estimated savings of $722 in a bank account[11] and held superannuation of an estimated amount of $1,500[12].  The Wife’s Financial Statement indicates that the Wife otherwise has no other property or financial resources. 

   [9] Wife’s First Affidavit, at [12] and [22]; Wife’s Financial Statement, at [2A] and [9].

   [10] Wife’s First Affidavit, at [30] and Wife’s Second Affidavit, at [15].

   [11] Wife’s Financial Statement, at [37].

   [12] Wife’s Financial Statement, at [45].

2. From early in the relationship until … 2018 the Wife worked temporarily at Employer E, and Employer F as a casual retail worker earning about $500 a week[13].  The Wife commenced her studies in about January 2018 and started to receive $519 per week, until she took maternity leave on … 2018, being the day X was born.  After the birth of X the Wife undertook the full time care of X.  The Wife has now re-commenced her studies and received her first pay on 9 October 2019[14].  The Court does not have before it any evidence as to how long it is anticipated that the Wife's scholarship studies will continue.

   [13] Wife’s First Affidavit, at [12].

   [14] Wife’s First Affidavit, at [12] and [22].

1. The Court does not have before it a copy of a current Child Support Assessment for X.  In the Husband’s Financial Statement the Husband deposed that there was arrears of $1,684 in child support and $299 payable weekly from 7 December 2019[15].  Therefore from 7 December 2019 the Wife should be receiving weekly financial support totalling $818, being $519 from her Scholarship Income and $299 from child support payments.

   [15] Husband’s Financial Statement, at [31].

Husband

1. The Husband’s Financial Statement states that he is a professional employed by Employer G[16].  The Husband’s Financial Statement demonstrates that he has an average gross weekly income of $2,177.73 or $113,241.96 per annum.  The Husband pays income tax of $651 a week[17], so therefore his net weekly income is $1,526.73.  

   [16] Husband’s Financial Statement, at [3] and [5].

   [17] Husband’s Financial Statement, at [19].

2. The Husband’s Financial Statement discloses that he owns:

   a)The B Street, Suburb C valued at $910,000.

   b)A Motor Vehicle H with an estimated value of $8,000.

   c)A Motor Vehicle J with an estimated value of $15,000.

   d)Household contents valued at $6,500.

   e)Superannuation entitlements with Super Fund N with a value of $84,562.26.

   f)Savings of approximately $800.

3. The Court notes that settlement of the B Street, Suburb C was to take place on 2 December 2019[18].

Section 90SF(3)(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years;

[18] Wife’s Second Affidavit, at [4].

1. The Wife has been the primary carer of X since her birth and since separation from the Husband.  X is now aged 14 months.  X has been attending childcare approximately three days a week, which has allowed the Wife to attribute those free days to her studies.  The Husband has been contributing to this expense but the Wife deposed that he has ceased paying[19].  The Husband denies this claim[20]. 

Section 90SF(3)(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;

[19] Wife’s First Affidavit, at [25].

[20] Husband’s Affidavit, at [25] and Annexure “H-4”.

The Wife

1. The Wife’s Financial Statement demonstrates that she has total weekly expenses of $669[21].  Of these expenses the Wife attributes the sum of $401 to X and $268 to herself.  The Financial Statement was prepared at a time when the Wife had not secured alternate accommodation.  Settlement of the B Street, Suburb C was to take place on … 2019[22].The Wife has now secured a rental property in Suburb A for $500 a week (Suburb A Property).  The Wife deposed that she had considerable difficulty in obtaining a lease for any rental property[23].  

   [21] Wife’s Financial Statement, at [2B].

   [22] Wife’s Second Affidavit, at [4].

   [23] Wife’s Second Affidavit, [2] to [9].

2. The Wife deposed that her weekly expenses will increase by at least $500 a week.  In addition to weekly rent of $500 the Wife will also incur the cost of utilities, being gas, water, electricity and internet[24].  The cost of the utilities has not been included in the Wife’s Financial Statement, as the Wife had not secured the lease of the Suburb A Property at the time of filing the Financial Statement nor moved into the property at the time of deposing to the Wife’s Second Affidavit.  I note that the Husband is presently living with his parents at their home in Suburb K and that he claims to be sharing the expenses of food and utilities with his parents.  In the Husband’s Financial Statement he deposes to spending an estimated amount of $33 a week on each of gas, electricity and heating fuel, being a total of $99.  I intend therefore to use the sum of $100 as being the estimated amount each week that the Wife is likely to be spending on utilities. 

   [24] Wife’s Second Affidavit, at [13]-[14].

3. The Wife’s total weekly expenses are $1,299 being:

   a)In accordance with the Wife’s Financial Statement the sum of $699[25].

   b)Rent for the Suburb A Property in the sum of $500.

   c)An estimated amount of $100 for utilities.

   [25] Wife’s Financial Statement, at [60].

4. As discussed above, of these expenses totalling $1,299 the Wife attributes the sum of $401 to X[26].  In this case the Wife is not entitled to any Commonwealth benefits, such as assistance for childcare and so forth.  Therefore notwithstanding that the Husband will be paying $299 a week for child support, in my view it is appropriate for the Wife to have further assistance for costs notwithstanding that they may be attributable to X.  I therefore find that from the Wife’s total weekly income of $818 her expenses are $1,299, leaving a weekly shortfall of $481.00.   

   [26] Wife’s Financial Statement, at [60].

5. On 11 November 2019 the Husband transferred $10,000 to the Wife.  Counsel for the Wife advised the Court that a significant amount of this money had been used by the Wife for the rental bond on the Suburb A Property and would also be used for moving expenses and establishment expenses.    

The Husband

1. The Husband’s Financial Statement discloses the following liabilities totalling $972,500 being:

   a)A home mortgage to the Commonwealth Bank in the sum of $652,500.

   b)A loan to his Husband Mr Hagar in the sum of $320,000.

2. The Husband’s Financial Statement claimed expenses of $2,613.41 a week including (after tax):

   a)Mortgage payment to the Commonwealth Bank of Australia of $690.

   b)Rates, unit levies of $47.44.

   c)Home insurance of $12.45.

   d)Car insurance on two cars totalling $33.87.

   e)Car registration on two cars totalling $31.75.

   f)Loan repayment to his Husband Mr Hagar for “Family loan for home purchase” of an estimated amount of $100.

   g)A total of all other expenditure of $531 a week[27].  There was no information in the Husband’s Financial Statement as to how the amount of $531 was calculated.  It is noted that the schedule of average weekly expenses in Part N, Item 60 of the Husband’s Financial Statement listed weekly expenses of $674.

   [27] Husband’s Financial Statement, at [32].

3. As I understand the evidence, the Wife presently has the use of one of the cars that the Applicant owns.

4. It is noted that the Husband’s expenses included a payment of $216.90 of superannuation to Super Fund N.  Both Counsel for the Husband and the Wife agreed and submitted that this expense should not have been included in Part G of the Husband’s Financial Statement, as it was not an expense paid by the Husband.

5. I find that after settlement of the B Street, Suburb C the Husband’s  weekly commitments necessary to enable him to support himself are:

   a)Car insurance on two cars totalling $33.87.

   b)Car registration on two cars totalling $31.75.

   c)Child support of $299[28].

   d)Expenditure on items specifically referable to the Husband in the Table in Part N, Item 60 of the Husband’s Financial Statement in the sum of $328.  I do not allow the sum of $26 for gym expenses on the basis of it not being a commitment “necessary to enable the party to support” himself: s.90SF(3)(d).

   [28] Husband’s Financial Statement, at [31].

6. I have made no allowance for the amount of $100 a week claimed for the item referred to in sub-paragraph 46(f).  Upon settlement of the B Street, Suburb C the Commonwealth Bank mortgage will be paid out and the balance of the sale proceeds will be paid into the trust account of Nevitt Ford Lawyers.  The terms of any loan agreement between the Husband and the paternal grandfather, Mr Hagar, is a matter for determination by the Court or agreement between the parties, being a non-arms’ length transaction. The paternal grandfather held no mortgage or caveat over the B Street, Suburb C securing the claimed loan[29].

   [29] Wife’s First Affidavit, Annexure “A”.

7. I therefore find that the Husband’s current weekly necessary commitments to support himself (including paying child support) is $692.62.

   (ii)a child or another person that the party has a duty to maintain;

8. The Husband is required to pay child support of $299 for X[30].  There is no evidence before the Court that either party has a duty to maintain any other child or person.

   [30] Husband’s Financial Statement, at [31].

Section 90SF(3)(e) the responsibilities of either party to support any other person;

1. Neither party has disclosed an obligation to support any other person.

Section 90SF(3)(f) subject to subsection (4), the eligibility of either party , 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;

1. In relation to the matters referred to in s.90SF(f)(i), the Wife is not eligible for Centrelink benefits because she is on a Protection Visa (Subclass 866)[31].

   [31] Wife’s First Affidavit, at [30] and Wife’s Second Affidavit, at [15].

2. In relation to the matters referred to in s.90SF(ii), neither party has disclosed eligibility for such entitlements.

Section 90SF(3)(g) a standard of living that in all the circumstances is reasonable;

1. The Wife’s Scholarship Income is insufficient to cover her day to day living expenses and to maintain a reasonable standard of living, whilst also having the primary care of X.  By reason of the matters referred to in paragraph 54 the Wife is unable to access any Centrelink benefits.  If the Husband does not pay spousal maintenance the Wife will be unable to support herself whilst completing her studies.

Section 90SF(3)(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;

1. I again refer to paragraph 54.  There is no evidence before the Court as to subject matter of the research that the Wife is undertaking her studies in.  I infer from the fact that the Wife is receiving the Scholarship Income that University considers the Wife’s research project to be of significant value. 

2. There is no suggestion in the Husband’s affidavit material that the Wife's studies are not a worthwhile undertaking.  There was no suggestion by Counsel for the Husband in any submission that the Wife should not be pursuing her postgraduate studies.  I therefore conclude that is accepted by the Husband that should the Wife obtain her, it will be likely to assist in increasing her income earning capacity and thereby her ability to provide for both herself and X. 

Section 90SF(3)(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditors and debt, so far as that effect is relevant;

1. This is not a relevant consideration.

Section 90SF(3)(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

1. The Wife deposed that during the relationship when she was working she contributed equally to the rent and day-to-day living expenses of the parties[32].  After the Wife went on maternity leave on … 2018 she applied the funds that she had saved, which were in her own bank account, to joint expenses including rent, food and groceries[33].   The Wife then became the full-time primary carer for X[34]. 

Section 90SF(3)(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

[32] Wife’s First Affidavit, at [13].

[33] Wife’s First Affidavit, at [12].

[34] Wife’s First Affidavit at [14].

1. The parties’ de facto relationship was of comparatively short duration, being about two years in length.   However it has had a significant effect upon the earning capacity of the Wife, now that she is the primary carer for X who is currently aged 14 months.  There are presently no orders for X to spend time with the Husband.  Unless an order is made for spousal maintenance the Wife will not be able to afford childcare to continue her studies.

Section 90SF(3)(l) the need to protect a party wishes to continue that party’s role as a parent;

1. The Wife has deposed that as X is only an infant, she does not want to work in a part-time or casual job, in addition to also undertaking three days’ a week work on research for her studies.  X presently attends child-care approximately three days a week, which allows the Wife to attribute those three days to her studies.  The Wife is then able to spend the rest of her time with X[35].

Section 90SF(3)(m) if either party is cohabiting with another person - the financial circumstances relating to the cohabitation;

[35] Wife’s First Affidavit, at [25].

1. The Husband deposed that he is temporarily living with his parents until he can secure a rental property.  He pays for food and utilities at his parents’ home[36].

   [36] Husband's Affidavit, at [33].

2. There is otherwise no evidence before the Court that either party is cohabitating with another person.

Section 90SF(3)(n) to Section 90SF(3)(t)

1. I have considered the matters referred to in ss.90SF(3)(n) to (t) and consider that they are not relevant to this matter.

Consideration – Section 90SF(1)

1. Having considered the relevant matters in s.90SF(3) I now turn to consider s.90SF(1).

Section 90SF(1)(a)

1. I will first consider s.90SF(1)(a) and whether the Husband is reasonably able to maintain the Wife. The Husband has a net income of $1,526.73 a week[37].  I have determined that the Husband’s weekly necessary commitments to support himself, including paying child support, total $692.62[38].  This leaves the sum of $834.11 available each week.   I therefore determine that the Husband is reasonably able to maintain the Wife.  In determining the orders that I intend to make I have specifically taken into consideration the Husband’s expressed desire to find a rental property to live[39].  I have also taken into consideration the fact that the Wife has no family in Australia with whom she is able to live and that she is therefore entirely dependent on rental accommodation[40].  In balancing these two considerations, I have concluded that in the circumstances the Husband may in the short term have to defer finding rental accommodation on the basis that he will be paying maintenance to the Wife.

   [37] Paragraph [36].

   [38] Paragraphs [49]-[51].

   [39] Husband’s Affidavit, at [33].

   [40] Wife’s First Affidavit, at [26].

2. I therefore find for the purposes of s.90SF(1)(a) that it is reasonable for the Husband to maintain the Wife.

3. I now turn to consider s.90SF(1)(b). I find that the Wife is unable to support herself by reason of:

   a)Having the care and control of X, who has not attained the age of 18 years: s.90SF(1)(b)(i).

   b)Another adequate reasons: s.90SF(1)(b)(iii). In this respect I refer to the Wife's studies and I refer to paragraphs 33, 34, 57, 58 and 62.

Conclusion – Section 90SE(1)

1. I have found in paragraph 43 that the Wife will have a weekly shortfall of $481.  I have also found in paragraph 67 that the Husband will have the sum of $834.11 available each week, after settlement of B Street, Suburb C.

2. I determine that until further order, pursuant to s.90SE(1) of the Act, the Husband pay to the Wife the sum of $480 each week by way of maintenance commencing from 9 December 2019.

Parenting Matters

1. The Husband has not in his Response sought any orders in relation to parenting.  At the mention on 27 November 2019 the Husband’s Counsel submitted that it was the Husband’s intention to seek parenting orders so that he could spend time with X.

2. I have therefore made Orders for the Husband to file and serve an Amended Response.  It is intended that the Amended Response should include the interim and final parenting orders that the Husband seeks. The Court has also listed the matter in the March Duty List so that parenting matters may be specifically addressed, in the event that the parties are unable to agree to interim consent orders for the Husband to spend time with X.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge C. E.  Kirton QC

Date: 5 December 2019