Vaughn & Donnell
[2022] FedCFamC1F 994
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vaughn & Donnell [2022] FedCFamC1F 994
File number(s): NCC 2945 of 2021 Judgment of: SMITH J Date of judgment: 2 December 2022 Catchwords: FAMILY LAW – INTERIM FINANCIAL MATTERS – Ex tempore reasons - Where the parties have been living separated under the one roof for over two years – Where each party seeks exclusive occupation of the jointly owned former matrimonial home – Where the wife seeks interim spouse maintenance –Where the wife does not work and says she has no effective earning capacity due to her health and time out of the open labour market – Where the husband has not submitted there should be no spouse maintenance but disputes the quantum claimed by the wife – Where the wife says the parties agreed to allow her adult children to live in her solely owned Suburb B property at a nominal rent and has now entered a Residential Tenancy Agreement with them at nominal rent – Where the husband says this is a sham transaction – Where the parties agree to private arbitration and the Judgment proceeds on that basis – Where the husband offers to provide $50,000 by way of partial property settlement to facilitate the wife rehousing herself – Ordered the husband pay to the wife $50,000 by way of partial property settlement – Ordered the husband have exclusive use and occupation of the former matrimonial home – Ordered the husband pay the mortgage and all rates, taxes and other outgoings including insurance and maintenance expenses for the former matrimonial home – Ordered the husband pay to the wife $1,600 per week in periodic spouse maintenance – Ordered the wife have exclusive use of the Motor Vehicle 1 – Ordered the husband be responsible for payment of all service and other outgoings including insurance and maintenance expenses for the motor vehicle Legislation: Family Law Act 1975 (Cth) s 72 Cases cited: Davis & Davis (1976) 11 ALR 445
Tailor & Tailor [2019] FamCA 383
Division: Division 1 First Instance Number of paragraphs: 49 Date of last submission/s: 2 December 2022 Date of hearing: 2 December 2022 Place: Newcastle Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Powe & White Family Law Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Michael Conley Lawyers ORDERS
NCC 2945 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VAUGHN
Applicant
AND: MR DONNELL
Respondent
order made by:
SMITH J
DATE OF ORDER:
2 DECEMBER 2022
THE COURT ORDERS THAT:
1.Within 35 days of the date of these Orders, the Applicant Wife vacate the property known as and situated at C Street, Suburb E NSW (“the Suburb E property”) and thereafter the Respondent Husband to have exclusive occupation of the Suburb E property pending further Order.
2.In relation to the Suburb E property the Respondent is required to pay: the mortgage, as to both principal and interest; all rates; all charges running with the land; all utilities; all common property fees; all insurances; and is to maintain the property in good and proper order and pay all maintenance costs.
3.By no later than Friday 9 December 2022, the Respondent shall pay to the Applicant $50,000 by way of partial property settlement.
4.By no later than Friday 9 December 2022, and each week thereafter until further order, the Respondent shall pay to the Applicant $1,600 per week in periodic spouse maintenance.
5.The Applicant shall have the exclusive use of the Motor Vehicle 1, which is owned by F Company, and the Respondent shall be responsible for payment for all servicing, tyre, maintenance, insurance and registration costs of the vehicle.
IT IS NOTED THAT:
A.The parties have agreed to attend private arbitration.
B.The parties will be referred to the National Arbitration List on provision of consent orders.
C.The husband has made submissions, and obtained orders, on the basis that the Arbitrator may re-consider whether the $50,000 which has been characterised as a partial property settlement, should be re-characterised as a lump sum spouse maintenance payment for the purposes of the arbitration, and the husband has so bound himself to that position.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are oral reasons for decision about who, if anyone, should have the sole use and occupation of a former matrimonial home, and about what spouse maintenance the respondent husband, Mr Donnell aged 60, should pay to the applicant wife, Ms Vaughn aged 62, until the proceedings can be determined at private arbitration in the first half of next year.
The brief history is that the parties commenced a relationship in about 2012 when they were already mature. They married in 2015 and separated in September 2020. The wife was originally from Sydney. She has three adult children from a former relationship. She gradually moved to City D to live with the husband.
Post separation the parties have continued living, unhappily, separated under the one roof at the former matrimonial home. There are mutual allegations made between them and police involvement has been sought.
The parties have substantial assets by community standards. The wife owned at cohabitation and still owns, a property in Suburb B, Sydney. In her Financial Statement filed on 31 October 2022, together with her Affidavit and Application in Proceeding of that date which brings the matter before me, she valued that property at $1.3 million and it was said to have a mortgage of $58,154, with a net value of approximately $1.25 million. I note that the husband, in his draft balance sheet, annexure A to his Affidavit, values the Suburb B property at about $1.4 million. Assuming for now the wife’s evidence, this is a significant asset wholly owned by her.
The husband owns a company and a family trust which operate a business which I will refer to as “the business”. That is valued, on the husband’s draft balance sheet, at about $7.1 million. The business has about $670,000 cash at bank in at least one online saving account as at 14 August 2022. The husband has several motor vehicles which he values at $700,000 plus. The wife says they are worth more.
The parties jointly own the former matrimonial home in Suburb E, New South Wales. There is said to be a dispute as to the valuation of the former matrimonial home but there is a single expert who valued it at about $2.75 million, subject to a mortgage which is about $670,000. For these purposes I accept the single expert.
The husband puts the net matrimonial pool at about $7.4 million and the wife, as I understand it, at about $9.5 million. There are issues with Division 7A loans, tax liabilities, including for the wife’s work in the business, and a variety of other matters that need determination.
However, as I have said, on any assessment by community standards the parties have substantial assets, and significantly each party has complete control over substantial assets. This is not a case where one party has control over all of the assets other than the jointly owned former matrimonial home.
The wife does not work. She says she has no effective earning capacity due to her health and also her time out of the open labour market. She says her income in recent years represents income splitting within the family business. She says she currently receives $200 per week rent and $500 voluntary spouse maintenance from the husband.
The $200 per week rent is from the $1.3 million Suburb B three bedroom property. She included in her documents a three year residential tenancy agreement commencing on 1 May 2022 which shows rent at that sum. The tenants are two of her three adult children. None of her children are disabled. The evidence from her bank accounts seem to indicate that they have not actually paid any rent and she has not made any efforts to collect it. There is no doubt that this is a gross undervaluation of property’s rental return and does not constitute an arm’s length market rent or transaction.
The wife says that this merely formalises the pre-existing arrangement where the parties agreed to allow her children to use the property at a nominal rent. I note there is a third bedroom in the property which the wife can use and, from her financial statements, it appears that she regularly visits in Sydney and apparently does stay with her children in this property. That is not surprising. The wife’s case, as I understand it, is that the court would give little weight to this property in assessing this application because it is being used by her children and is subject to a three year lease which brings only $200.
The husband says this is a sham transaction for the purpose of these proceedings. Now, I cannot make findings, but where the entry into a three year residential tenancy with adult children at a rent which is a small fraction of the market rent only occurs during contested proceedings, in circumstances where the wife does not actually collect the rent, the possibility that it is a sham or effectively her disposing of an asset which is the right to collect rent, and so choosing to use her money to support her children than herself, must be considered. It seems to me that she cannot reasonably say that the court should not take this significant asset into account.
If the rental was $750 or $800 a week for three years and she has chosen to give that up, and she has chosen not to collect even the nominal rent, it is not appropriate for her to say that this then becomes the husband’s problem because he previously agreed to the support of her adult children.
To the extent to which I consider the wife’s financial position, I proceed upon the basis that the Suburb B property should be treated as being equal to the $1.25 million she could get if she sold it after payment of the mortgage, or else it being equal to a true market rent which seems to be somewhere around $800 a week.
The husband says that his gross income is $4,672 per week and his outgoings $4,560. However, as the sole owner of a profitable business he controls his income. He elects to have substantial Division 7A loans. I am comfortably satisfied he has access to significant cash reserves in his business and he could pay himself more if he wanted to. Although, of course, taking profits out of a business which is taxed at 30 per cent and then paying them to himself will require him to pay tax at his own marginal rate, so he may well choose not to. But, in terms of his access to finances, he clearly has significant financial capacity.
I note that the husband’s part N is $2,565 per week, which is interesting to look at when he complains that the wife’s part N at $1,366 either reflects extravagance or exaggeration. I give little weight to his analysis of her part N. If her part N is exaggeration or extravagance, and does not reflect the reality of actual living expenses, one wonders what to make of his?
I note that as set out at page 31 of the wife’s Court Book in correspondence from the husband’s solicitor the parties had an informal agreement, which was quite sensible, and which occurred from separation on 13 September 2020 until recently.
The husband’s letter dated 21 September 2022 says, relevantly:
Since separation on 13 September 2020, our client financially supported your client as follows:
1.Weekly payments of $900 from the [F Company] Division 7A Loan Account;
2.Payment for her mobile phone costs;
3.Payment for all fuel, registration and running costs for the [Motor Vehicle 1] owned by [F Company], to which your client has had exclusive use;
4.Payment for [G Health Insurance] for your client and her adult daughter [Ms H];
5.Payment for all costs associated with the [Suburb E] property, where your client resides rent-free.
Throughout the period from separation to date, it is our client’s observation that your client has not made any effort to secure employment for herself, despite her alleged previous [professional work experience].
Our client is no longer willing to provide the same level of financial support he has provided since separation. In saying this, our client is cognisant of Notation A in the Orders made on 27 October 2021 which reflected his commitment to provide the spousal support up until mediation, which he has fulfilled. Although our client is always open to negotiating a settlement of the property matters, given the disparity with the parties’ final position at mediation, which we note is now reflect in offers of settlement tabled by both parties, he no longer considers himself bound with respect to any past agreement.
Accordingly, from the date of this letter and on an interim basis our client will agree to pay the following:
1.The sum of $500 per week by way of spousal maintenance;
2.Our client, in his capacity as director and sole shareholder of [F Company], will ensure the payment by the company of the [Motor Vehicle 1’s] service, insurance and registration costs.
We confirm our client will no longer be responsible for the payment of the following:
1.Your client’s fuel or toll costs for the [Motor Vehicle 1];
2.Your client’s health insurance. Hhe [sic] will take steps to remove your client and [Ms H] from the [G Health Insurance] policy as from 1 October 2022;
3.Your client’s mobile phone, which will be removed from our client’s telephone plan as from 1 October 2022.
Comparing this letter, I note that in the husband’s evidence he says that he has changed his position because she has not disclosed her true financial position. The wife says that he is cutting her off to put pressure on her to settle on terms favourable to him.
In a similar vein the husband refers to material in the police documents which he says shows that the wife is not moving out of the former matrimonial home solely on legal advice to put pressure on him to settle on terms favourable to her.
I cannot make any findings about either of these matters, but on the evidence I would not be surprised if ultimately there is merit in both sets of submissions.
On a positive note, in that context the parties today advised the court that they have now agreed on a private arbitration in order to more quickly resolve the issues. That is an extremely sensible approach given that they consider that they will be able to retain a mutually agreeable arbitrator and conduct an arbitration in the first quarter of 2023. Based upon my understanding of who is available on the market, they should have no difficulty getting a retired judge or experienced barrister in that timeframe. Noting the age of the matter, which is still relatively young in the context of lists which, whilst getting better are still long, it is going to be some time before they would otherwise have priority for hearing before me.
Now, this statement to me of intention by each party is something which I treat as a matter of fact as to the timeframe to final decision. I take it into account and give it weight in weighing the competing factors and formulating the orders which I make.
The wife’s application, as set out in her Application in Proceeding at page 5 of her Court Book and starting with the orders set out on page 7, is as follows, from Order 2 down to Order 4:
2. As an from 14 days after these Orders are made, the Applicant, [Ms Vaughn], shall have exclusive occupation of [C Street, Suburb E] in the State of New South Wales (the property”).
3. Pending further order, the Respondent, [Mr Donnell] shall pay the following on behalf or otherwise to the Applicant:
a. $1,250 week into the nominated bank account of the Applicant, with such payment to be received by the Applicant no later than 5pm each Thursday;
b. All costs of and associated with the Respondent’s [Motor Vehicle 1], including but not limited to:
i. The provision of fuel for the vehicle, and to that end, the Respondent must provide to and ensure the Applicant’s continued unfettered use of a [J Company] petrol card;
ii. All maintenance and repair costs, with such costs to be paid for by the Respondent within seven days of being rendered with a tax invoice evidencing that the Applicant has incurred repair and maintenance expenses for the said vehicle; and
iii. All insurances, including Comprehensive Motor Vehicle insurance, which includes the car for its present market value as nominated by the insurer and Compulsory Third Party insurance; and
iv. All registration costs, including that with the relevant statutory body and any cost to obtain certificate or slips to enable the vehicle to be registered.
c. All outgoings associated with the property, being:
i. Counsel rates;
ii. Water rates and water usage;
iii. Home and contents insurance, with the insurable valuer being no less than the most recent policy taken out over the said property;
iv. Electricity and gas expenses and charges;
v. Internet charges; and
vi. All maintenance and repair costs, with such costs to be paid for by the Respondent within seven days of being rendered with a tax invoice evidencing that the Applicant has incurred repair and maintenance expenses for the said property.
d. The sum of $300 per month to enable the applicant to maintain her own private health insurance policy with such an amount to be paid into the nominated bank account of the Applicant, by the Respondent, by no later than the 25th days of each calendar months.
e. The sum of $35 per month to enable the applicant to maintain her mobile telephone service with such an amount to be paid into the nominated bank account of the Applicant, by the Respondent, by no later than the 25th day of each calendar month.
4. The respondent shall pay to the applicant the amount fixed at $5,000 in lump sum spousal maintenance on account of the amount of money withheld by the respondent in the most recent period.
Significantly, the wife does not seek to retain the former matrimonial home. As I understand it, she wants to retain Suburb B. The husband does not have another property and he does seek to retain the former matrimonial home. The husband’s position as to the orders he seeks is set out in his Court Book at pages 4 and 5 under Orders:
1. That the Applicant Wife’s Application filed on 31 October 2022 be dismissed.
2. That within 14 days of the date of these Orders, that the Applicant Wife vacate the property known as an situated at [C Street, Suburb E NSW] (“the [Suburb E] property”) and thereafter the Respondent Husband to have exclusive occupation of the [Suburb E] property pending further Order.
3. That in the alternative to Order 2:
a. The Respondent Husband is to have exclusive occupation of the self-contained unit in the downstairs wing of the [Suburb E] property, together with exclusive occupation of the two sheds on the property […];
b. The Applicant Wife is to have exclusive occupation of the balance of the house, except for the laundry area, to be shared between the parties, on the [Suburb E] property; and
c. That the parties share the outdoor areas of the [Suburb E] property.
4. That pending further Order, the Respondent Husband pay by way of spousal maintenance to or on behalf of the Applicant Wife as follows:
a. $1,166 per week to an account nominated in writing by the Applicant Wife; (as amended in oral submissions)
b. Payment for the service, tyres, maintenance, insurance and registration costs of the [Motor Vehicle 1], which is owned by [F Company]; and
c. All costs and outgoings associated with the [Suburb E] property, including mortgage payments, electricity, water rates, council rates, insurance levies, [common property fees], and internet services.
5. That the Applicant Wife pay the Husband’s costs of an incidental to this Application.
The husband says that order 4(a) in his proposal should be varied so that rather than saying “$500 per week” it says “$1,166 per week” and it is amended above.
Also the husband has offered, as part of his application for sole use and occupation, to pay the wife $50,000 within seven days by way of partial property settlement. He says that this should be treated as part of a property settlement rather than a lump sum spouse maintenance to reflect access to cash-flow given her $1.2 million in equity.
It was also submitted to the Court that the Court could order the $50,000 be characterised as a partial property settlement, but then leave to the arbitrator the issue of whether it should have been more properly characterised as spouse maintenance if the husband gets the use of the former matrimonial home. I am not so sure that I would have power to do that except that where the husband says as part of his case that this is part of his offer, then I think I do, because I consider he would be bound by what he has put to me in order to obtain the orders he seeks, and the arbitrator can be shown a copy of this Judgment in that regard.
There is a lot of other material put before me, much of it argumentative. The principles that apply on an interim application are clear. Each party alleges impropriety on the part of the other party. Each party alleges that the other party may not take care of the former matrimonial home. Each party alleges that the other party is playing games and seeking to manipulate the system. I cannot make any findings. There are allegations of family violence. I cannot make any findings. There is not the kind of evidence which one sees in some cases where there are allegations of family violence and a denial, but one has police records of people being found bloodied to which weight is nevertheless given without making findings.
While the issues of separate use and occupation, spouse maintenance and partial property settlement are legally discrete, given their factual interaction my decision on each topic necessarily impacts the appropriate order to make on the other issues, as the court is seeking to do overall justice between the parties, so the orders are interlinked and interdependent.
The principles applicable to the question of sole use and occupation, which I think should be dealt with first, are well-known, starting with as far back as Davis & Davis (1976) 11 ALR 445.
I note there is a very convenient summary in Tailor and Tailor [2019] FamCA 383 by McEvoy J of this court, as he then was, before he moved to the Federal Court, at 35 of his judgment:
35. The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the s 114(1) injunction power in Sieling v Sieling. These principles have been the subject of frequent exposition in the Full Court and application by primary judges. They may be summarised as follows:
a) the Court may make such an order as it thinks proper: Davis & Davis (1976) FLC 90-062, 75,309 (Evatt CJ, Pawley and Ellis JJ);
b) there are no words of limitation in s 114(1) other than the requirement that the grant of an injunction must be “proper”. A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it: S & S [2002] FamCA 59, [40] (Kay, Holden and Monteith JJ);
c) an injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances: S & S, [38];
d) it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order: S & S, [41];
e) the Court does not need to make a finding that the situation in the former matrimonial home is “intolerable” or “impossible”, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together: Rowe & Rowe (1980) FLC 90-895, 75,639-75,640 (Evatt CJ), 75,644 (Pawley SJ), (cf Wood SJ at 75,643); Davis & Davis (1983) FLC 91-319, 78,170 (Baker J, with whom Evatt CJ and Underhill J agreed);
f) the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order: Davis & Davis (1976), 75,309; Rowe & Rowe, 75,640 (Evatt CJ), 75,644 (Pawley SJ);
g) the test for making an order for exclusive occupation is an objective one, Rowe & Rowe, 75,644 (Pawley SJ);
h) the question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen: Walker v Walker (1978) 1 WLR 533, 536-537, cited with approval in Rowe & Rowe, 75,638-75,639 (Evatt CJ), 75,642 (Wood SJ) (albeit that his Honour appears to have referred mistakenly to Phillips v Phillips (1973) 1 WLR 615, in circumstances where it may be inferred that, like Evatt CJ, he meant to refer to Geoffrey Lane LJ in Walker v Walker);
i) the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together: Bassett and Bassett [1975] Fam. Law 76, 87, cited with approval in Rowe & Rowe, 75,639 (Evatt CJ), 75,642 (Wood SJ);
j) while the decision ought not be made merely on the balance of convenience: Davis & Davis (1976), 75,309, in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home: Dean & Dean (1977) FLC 90-213, 76,097 (Wood J), referring to Davis & Davis (1976);
k) it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened: Dean & Dean, 76,098.
It is not exhaustive and doesn’t replace the consideration of the authorities but it is a convenient summary of the key principles.
Both parties moved for an order for sole use and occupation although, in the alternative, the husband says they could both keep living there. Given the nature of the competing applications, where each party primarily seeks an order for sole use and occupation, where the police have been drawn into the matter whether because there is family violence as the wife says or because she is trying to manipulate police as the husband says, and I cannot not know whether the wife has been driving across the lawns to try and destroy them as alleged. However, it seems to me that reality is that it is not reasonable, sensible or practicable that these parties should continue to live at the former matrimonial home given the breakdown of the relationship.
Given my view that the Suburb B property continues as the wife’s and that the residential tenancy is not something to which I would give great weight, and given that the wife appears to sometimes live there, I accept the husband’s submission that she could either live in Suburb B, although I do accept that it would place a burden on the wife to require her to live in Suburb B when her life is now in City D. However, she could have obtained market rent for Suburb B, either from her adult children or in the open market, and that would have funded a suitable property in City D.
As I have said, each party makes allegations about the other which I cannot make findings about. There are no children of the relationship. The wife’s children are adults. Significantly, the husband wants to, and has the financial capacity to, retain the former matrimonial home, noting the length of the relationship and the asset pool. The wife does not want to.
Where I am satisfied that orders can be made, taking into account spouse maintenance and partial property settlement that do not work a significant hardship or an injustice on the wife, and in particular where the parties are to have an arbitration the first part of next year so that these orders should hopefully take effect for no more than about six months assuming the arbitrator gives a result in the usual timeframe, then I am satisfied that it is appropriate to make an order requiring the husband have sole use and occupation of the former matrimonial home within 28 days, on condition that he meet the orders as to spouse maintenance and partial property settlement which I will also make.
As to the costs of such an order, he will be required to pay the mortgage as to principle and interest, all rates and charges relating to the land, to pay for all utilities, duties, fees, insurance and maintenance and to maintain the property in good order. That it is not merely a convenient order. Given how soon the arbitration will be and the orders I propose to make in addition, I am satisfied that overall this will not work a hardship on the wife, and that it is the appropriate order to make taking into account the partial property settlement and spouse maintenance.
The right to spouse maintenance arises by reason of section 72 of the Act which says:
(1) 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, and only 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).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
The husband has not submitted that there should be no spouse maintenance. He says $1,166 per week. It is really a question of degree. As discussed previously in formulating the appropriate orders, I note the husband has now obtained the benefit of the sole use and occupation of the former matrimonial home which, as he says, is a unique property, and the fact that he gets to occupy that lovely property is a significant factor to be taken into account.
I note the parties’ ages. I note their statements as to their state of health. The wife does not have independent evidence at this stage of her health issues, but this is an interim hearing. I otherwise note what they say about their physical and mental capacity for appropriate gainful employment. There are no minor children of the marriage or other minor persons they have an obligation to support, and no issues with superannuation or pensions.
The payment of maintenance may allow the wife to spend some time addressing her earning capacity. I note that whilst the wife may have some earning capacity, subject to her physical capacity, one of the factors that always does arise where a person has been out of the workplace for a period of time and certainly once one gets a bit older, is that there are barriers to entry. These barriers will not necessarily stop the re-entry to a labour market, particularly where there is low unemployment as now, but these barriers may certainly slow that re-entry down. People often prefer to hire younger people for entry level roles, and it seems to me unlikely that she would be able to exercise any capacity that she otherwise has in the period prior to the time of the arbitration. In those circumstances, given the orders are made on the basis that there will be an arbitration within six months or less, I do not consider her earning capacity to be a relevant factor.
There are no creditors these orders will make an impact on. I note the evidence as to contributions to income and other matters. It is a relatively short marriage. There is no need to protect the continuation of parenting roles. The financial circumstances of other people co-habiting with the parties was not raised.
There is no child support obligation. The husband says he is not currently in a relationship with another person. There is no other fact or circumstance I consider relevant. I note the parties’ assets and their lifestyle and that the wife is entitled to a reasonable standard of living, particularly were the husband has the benefit of an order for the sole use and occupation of a lovely property.
I note the husband has a significant income and his offer to provide $50,000 by way of partial property settlement within seven days to allow the wife access to capital in circumstances where she does have capital but where that capital in the house may not be easy to access on a short-term basis exists.
Weighing all of these factors and the fact that the arbitration will be conducted in the first quarter of next year, so the matter should be finally concluded by mid-next year, I am satisfied that the husband should pay the wife spouse maintenance, which is not disputed
I understand how he gets the $1,166 per week but it seems to me, looking at his own part N and the fact that the wife will have to re-house herself, it is not a sufficient sum.
I am satisfied that the husband should pay the wife $1,600 per week in spouse maintenance by the end of each week ,with the first payment of $1,600 to be made by next Friday, 9 December 2022, and that he should be required to pay the wife as he has pro-offered $50,000 by way of partial property settlement by 9 December 2022
I note that a copy of these reasons may be given to the arbitrator on the basis that the husband has obtained orders by indicating to the court that he would be bound by a position that would allow the arbitrator to consider whether or not it would be more appropriate to characterise the $50,000 which has been characterised as part of the settlement as lump sum spouse maintenance.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 23 December 2022
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