Vincent v Smith
[2004] TASSC 141
•3 December 2004
[2004] TASSC 141
CITATION: Vincent v Smith [2004] TASSC 141
PARTIES: VINCENT, Leanne Kaye
v
SMITH, Paul Edward
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: BDR M37/2004
DELIVERED ON: 3 December 2004
DELIVERED AT: Hobart
HEARING DATES: 24 and 25 November 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Family law and child welfare – De facto relationships – Maintenance.
Relationships Act 2003 (Tas), s48.
Aust Dig Family Law and Child Welfare [494]
REPRESENTATION:
Counsel:
Applicant: C J Bartlett
Respondent: G F Williams
Solicitors:
Applicant: McVeity & Associates
Respondent: Walsh Day Williams
Judgment Number: [2004] TASSC 141
Number of Paragraphs: 35
Serial No 141/2004
File No M37/2004
LEANNE KAYE VINCENT v PAUL EDWARD SMITH
REASONS FOR DECISION MASTER S J HOLT
3 DECEMBER 2004
The application
The applicant is a 38 year old unemployed woman. The respondent is a 42 year old self-employed excavator and haulage vehicle operator. The parties are not married, but lived together between 1993 and May 2004. There is a 6 year old child of the relationship, Makayla. In May 2004 the applicant left the family home with Makayla and took up residence in a two bedroom caravan subsisting on a CentreLink sole parent pension of $336 per week and a small income derived from the manufacture and sale of embroidered items at craft fairs and markets. In the meantime, the respondent has continued to derive income from his excavation and haulage business.
By her amended application the applicant seeks an adjustment of the couple’s property interests and maintenance. The application for maintenance was set down for hearing and the hearing of the balance of the application, namely, the application for an adjustment of property interests deferred.
The jurisdiction of the court to award maintenance to a partner in a de facto relationship is entirely dependent on statute. Legislative provisions for the purpose have existed in Tasmania since 1837. For a history of the legislation up until just prior to the enactment of the De Facto Relationships Act 1999, see Glover v Walker [1998] TASSC 106.
At the hearing the argument for the applicant proceeded on the basis that maintenance should be awarded under the maintenance provision of the Relationships Act 2003 (“the Act”), namely, s47, but if it was impracticable to determine whether maintenance should be paid independently from the determination of the application for a property adjustment that a stop gap order should be made for periodic payments pending the final determination of the whole dispute between the parties. Urgent interim payments may be ordered under s48.
For reasons which appear later it is impracticable to determine what, if any, maintenance should be ordered under s47 without first making a decision on the property adjustment issue and, accordingly, I proceed immediately to a consideration of the urgent interim payments provision, namely, s48.
Section 48 is as follows:
“If, on an application by a partner for an order for maintenance, it appears to a court that the applicant is in immediate need of financial assistance but it is not practicable in the circumstances to determine immediately if any order should be made, the court may order the payment by the other partner, pending the disposal of the application, of any periodic sum or other sums the court considers reasonable.”
As can be seen there are four questions which arise under s48 on an application for maintenance. They are as follows:
(a) Is the applicant “a partner” of the respondent?
(b) Does it appear that the applicant is in immediate need of financial assistance?(c)Is it impracticable in the circumstances to determine immediately if a maintenance order should be made?
(d)What sum or sums, if any, is it reasonable to order the respondent to pay pending the determination of the maintenance application?
Question 1 – Is the applicant a “partner” of the respondent?
The Act, s3, defines a “partner” as meaning a person who is or has been in a “personal relationship”. Section 4 defines a “significant relationship” as a relationship between two adult persons who have a relationship as a couple and who are not married to one another or related by family. Section 4(3) provides that where a significant relationship is not registered under the Act in determining whether such a relationship exists regard is to be had to all of the circumstances of the relationship including matters such as its duration; whether the relationship was sexual; the degree of financial dependence or interdependence; the use of shared property; the degree of mutual commitment to a shared life; the care and support of children and the reputation and public aspects of the relationship. Section 6 defines “personal relationship” as including a “significant relationship”. It is common ground that the applicant and the respondent have never been married to each other, but lived together as if husband and wife for over ten years until May 2004 with there being a dependent child of the relationship. The respondent did not dispute the status of the applicant as a partner.
I find that the applicant is a “partner”.
Question 2 - Does it appear that the applicant is in immediate need of financial assistance?
Section 48 is concerned with immediate needs only. In her affidavit the applicant listed her current weekly expenditures which total $392. Since filing the affidavit, however, the applicant has moved into a housing department home at a weekly rental of $75. This is $13 less than the rent which she was paying at the time she completed the affidavit whilst living in the caravan. The adjusted listed expenditure therefore now totals $379 per week. The respondent did not challenge the amounts listed. In particular, there was no suggestion that there was any scope for savings except that it is expected that starting shortly the respondent will be charged with the care of Makayla on a slightly more frequent basis. At the moment the respondent has the care of Makayla one night per week and each alternate weekend. It is proposed that he should have her care three weekends out of four with the existing arrangement for one night mid-week being maintained. The applicant’s list of expenditure shows that she presently spends $145.50 per week on Makayla. At five days per week this is approximately $30 per day. When the new arrangement comes into effect the respondent will have the care of Makayla for two extra days in each 28 day cycle. Accordingly, it is reasonable to assume with the new arrangement the applicant’s cost of caring for Makayla will reduce by about $15 per week. This brings the applicant’s list of necessary expenditure down to about $364 per week.
The applicant sells embroidered goods at the weekly Penguin market. She gave evidence that she currently holds about $1,000 worth of made up stock and that at last week’s Penguin market she achieved sales to a value of $89 and after paying a site fee of $52 retained $37. She said that her income from the market from the week before was about the same. There was evidence that the applicant has sold her craft goods at two one off events in the last year being the Deloraine Craft Fair and Agfest. She might be expected to do the same when the events are held in future. The applicant also gave evidence that about three weeks before the hearing she undertook four days cleaning work at “Cosy Cabins” and earned $214. She said that although she is available to continue the cleaning work she has not been telephoned and asked to return to undertake more work in the last week or two immediately preceding the hearing. She gave evidence that in the three month period between February and May 2004 she obtained seasonal work grading vegetables and earned from that employment a total of $4,600. She hopes to obtain more seasonal work in the same area if and when it becomes available.
The applicant currently receives a Centrelink Sole Parent Pension of $336 per week. Assuming that she continues to make about $30 or $40 per week at the Penguin market she will be in sufficient funds to continue to meet her estimated adjusted weekly expenses which I have set out above and which total $364. Obviously, if she obtains more cleaning work or seasonal work grading vegetables she will have available more than $364 per week.
On the face of this evidence counsel for the respondent submitted no immediate need of financial assistance had been established. Counsel for the applicant submitted that in considering whether or not there was an immediate need of financial assistance and what, if any, payments the respondent ought be ordered to make I should disregard the applicant’s Centrelink pension. This submission was based on the Act, s47(3), which provides:
“In making an order for maintenance a court is to disregard any entitlement of the person whose maintenance is under consideration to an income-tested pension, allowance or benefit.”
It was common ground that the Centrelink pension is income tested, but on behalf of the respondent it was submitted that although s47 contains the mandate to disregard the Centrelink benefit, s48 does not. I accept the respondent’s submission in this regard. Section 47 is concerned with maintenance and subsection (3) is a legislative acknowledgement that the public purse should not be relied upon by a respondent to an application for maintenance. Section 48, however, is not concerned with maintenance, but instead is concerned with the provision of any necessary urgent stop gap payment or payments immediately needed by an applicant pending the determination of a maintenance application. The Act does not specify that income tested pensions should be disregarded when a s48 order is being considered. I think that having regard to its nature and object note can be taken of receipt of an income-tested pension in an assessment under s48.
Taking into account the applicant’s pension and weekly income derived from the sale of craft products the applicant’s present income approximately equals her adjusted estimate of her weekly expenses.
There are some other matters, however, which persuade me that the applicant is in immediate need of financial assistance. They are as follows. Firstly, the respondent does not dispute that the applicant needs a car and that she is currently driving a car which the respondent is providing to her. The car is subject to finance and payments of $245 per month are required. The respondent gave evidence that he is currently making these payments and I infer that the making of these payments amounts to a proper acknowledgement by the respondent that the applicant is in immediate need of some financial assistance from him. Secondly, the applicant’s most recent Mastercard statement was tendered in evidence. It shows that the applicant’s credit card limit is $2,000, but the account is presently overdrawn with a closing balance of $2,405.37 in debit. A minimum monthly payment of $405.37 required. Thirdly, I have evidence that the applicant was due to be admitted to hospital to have a lump in her breast removed on 1 December 2004. Her uncontested evidence is that she is obliged to pay gap fees for radiological services. There are likely to be other health related expenses which will need to be paid and, in addition, I infer that there is likely to be at least some short-term interference with the applicant’s ability to continue making the modest income which she derives from the sale of her craft work.
I am satisfied that the applicant is in immediate need of some financial assistance.
Question 3 - Is it impracticable in the circumstances to determine immediately if a maintenance order should be made?
Section 47 subsections (1) and (2)(d) provide:
“(1) On an application by a partner for an order for maintenance, a court may make the order if satisfied that the applicant is unable to support himself or herself adequately because –
(a)the partner's earning capacity has been adversely affected by the circumstances of the personal relationship; or
(b)of any other reason arising in whole or in part from the circumstances of the personal relationship.
(2) In determining whether to make the order and in fixing any amount to be paid under the order, a court is to have regard to the following:
…
(d) the terms of any order made or proposed to be made under section 40;”.
Section 40 is the provision dealing with the adjustment of interests in respect of the property of the partners.
Counsel for the respondent submitted that before an order can be made under s48 an applicant must bring himself or herself within the ambit of s47. Sections 47 and 48 of the Act are similar to ss72 and 77 respectively of the Family Law Act 1975. Speaking of the Family Law Act, s77, Treyvaud J said in Gyopar v Gyopar (1986) FLC 91-769 at 75,610:
“It is to be read in conjunction with sec 72. Section 77 is not intended to entitle a spouse to maintenance in circumstances where a spouse does not establish a right to maintenance pursuant to sec 72.”
In my respectful opinion, this statement misunderstands the nature and application of the urgent interim payments provision. If an applicant can immediately establish a right to maintenance under the primary provision there would be no need to resort to the urgent interim payments provision. If a right to maintenance could be immediately established under the primary provision an applicant could never satisfy the s48 prerequisite of persuading a court that it is impracticable to determine the maintenance question immediately. The constraint which Treyvaud J would impose does not appear in the wording of the provision and in my view its implication would render the urgency provision impotent.
The approach to be taken when considering an application for urgent interim payments was considered by the Full Court of the Family Court of Australia in Chapman v Chapman (1979) FLC 90-671. There Fogarty J with the agreement of the other members of the court made some observations about the consideration of the question of quantum, but I think that his observations were general and are applicable to the approach to be taken in considering whether an order should be made at all. He said at 78,570:
“It appears to me that having regard to the nature of this type of order and the somewhat ad hoc procedures which are necessarily involved in it, that a somewhat wider scope or discretion is involved in orders of this sort than there would be for maintenance orders either of an interim type under sec 80 or a final type under sec 72 or sec 73. In those latter cases the scope of the discretion is defined and limited by the evidence which is given, which is usually of a relatively precise nature.
Under sec 77 the issues have not been fully ventilated; there are usually uncertainties about the matter and, consequently, the range of discretion must necessarily be wider. That does not mean that it is an unlimited discretion to choose any order, but it is in my view clear that a wider discretionary attitude may be adopted to orders of this sort. Any injustice that might flow from that is normally minimal because the orders by their very nature are intended to be a for a very limited period of time, and capable of more adequate assessment in the future.”
I reject the submission that an applicant must bring himself or herself within s47 before an order under s48 can be made.
I cannot immediately determine the s47 application by summarily dismissing it. The applicant is the primary carer of the 6 year old daughter of the couple and it is plainly arguable that that circumstance arises from the relationship and adversely affects the applicant’s earning capacity. There is prima facie evidence that the applicant is unable to adequately support herself. In her affidavit she says that she is dependent on receipt of a Centrelink Sole Parent Pension. It is plainly arguable that the s47(1) prerequisites are satisfied. There is a possibility of an order under s47 ultimately being made but such an order cannot be made until certain matters (including the matter specified in s47(2)(d), namely, any property adjustment) have been considered. The application for an adjustment of interests in property is yet to be heard. Accordingly, the s47 maintenance application cannot be immediately determined.
The third prerequisite under s48 has been satisfied, in particular that it is impracticable to immediately determine if an order for maintenance under s47 should be made.
Question 4 – What sum or sums, if any, is it reasonable to order the respondent to pay pending the determination of the maintenance application?
I have found that the applicant is in immediate need of some financial assistance and as is apparent from my reasons for so finding it is not possible to accurately quantify that need. If any order is to be made for payments by the respondent to the applicant pending the hearing and determination of her maintenance application the amount will have to be what I consider to be reasonable based upon the matters previously outlined in my consideration of whether there is an immediate financial need and, of course, the respondent’s means.
As indicated at the start of these reasons the respondent is a 42 year old self-employed excavator and haulage vehicle operator. On behalf of the respondent it was submitted that he is without sufficient means to make any payments and that it would be wrong to force him into debt to do so because that would be to require the intervention of a third party lender and there can be no certainty that a lender would be willing to intervene. A court should not order a person to do something without being satisfied that the person has the ability to comply.
Counsel for the respondent referred to par25-410 of the Australian Family Law & Practice loose-leaf service published by CCH Australia Ltd. The only case cited in that paragraph is Kajewski v Kajewski (1978) FLC 90-472. That case is authority for the proposition that if on a maintenance application made pursuant to the Family Law Act 1975, enquiry reveals that the other party has no ability to pay the application must fail.
At this stage of the enquiry according to the considerations specified in the Act, s48, I am concerned with considering what, if any, order is “reasonable”. In my opinion if enquiry reveals that the respondent has an ability to meet in whole or in part the established urgent financial needs of the applicant relief can be given. If I was not satisfied that the respondent could pay I would agree with counsel that it would be wrong for me to bind the respondent to an order.
I am satisfied that the respondent has a capacity to meet the urgent financial needs of the applicant, despite him having adduced evidence showing that currently he is spending more than he earns. In his affidavit the respondent said that he currently has a boarder who pays $50 per week towards fixed household costs and contributes towards the cost of groceries. His affidavit then goes on to list his weekly expenditure and that shows that on average he contributes $85 per week for the purchase of food for the boarder. In addition, it emerged during the course of cross-examination of the respondent that in the last couple of months he has purchased gifts for his boarder including perfume from the store “Loving Promises” to a value of $138.
It is apparent from the applicant’s list of expenditure that she is living virtually on the breadline and that at the date of the hearing of the application, even when her pension is taken into account, she has insufficient funds to meet all of her immediate needs. There are uncertainties concerning her health and her continued ability to earn a modest income from the sale of craft products or to derive income from other activities such as cleaning and vegetable grading. She is likely to incur some medical expenses associated with the surgery to remove the lump from her breast. She needs to make appropriate allowances to bring her credit card debt back within the authorised limit.
I am satisfied that the respondent has an ability to assist the applicant in an amount of at least $85 per week as no reason has been advanced why the respondent should be buying food for his boarder to this value each week rather than requiring the boarder to pay her share of the cost of food, or find other accommodation. I note that the respondent said in his evidence that his previous non-compliance with a Child Support Agency requirement to pay $20 per week towards the upkeep of Makayla will now cease. Assuming that from now on the required child support payment of $20 will be made there is still $65 per week which the respondent could contribute to the applicant’s needs rather than indulging the boarder.
It is impossible for me to quantify precisely how much extra money the applicant needs, but taking into account in particular the applicant’s debt servicing requirements I think that the sum of $65 per week which I have found the respondent can pay should be paid. Section 48 does not compel exact calculation of needs and the shortfall it authorises where there is a shortfall the making of an order requiring payment of a “reasonable” sum or sums of money.
In making the orders which are set out below I am anticipating that the respondent will continue to make the payments on the car directly and will also pay the child support assessment of $20 per week. If he does not do these things the applicant can apply on short notice for a variation of the orders.
I consider the sum of $65 per week to be a reasonable sum to order the respondent to pay pending the determination of the applicant’s maintenance application subject to either of the parties being able to apply for a revision should there be a change in circumstances prior to the hearing or should it appear that the application for maintenance is unlikely to be determined within about the next three months.
Orders
I make the following orders:
(1)Within seven days of the personal service of this order on him the respondent is to pay to the applicant an amount calculated by dividing the sum of $65 by 7 and then multiplying the figure arrived at by the number of days inclusive between 3 December 2004 and the date of the payment.
(2)On the first Monday occurring more than seven days after the personal service of this order on him the respondent is to pay to the applicant the sum of $65.
(3)On each subsequent Monday until further order the respondent is to pay to the applicant the periodic payment of $65 per week.
(4)The payments are to be in cash.
(5)Any application for a vacation or variation of these orders may be made by the respondent on 14 days’ notice to the applicant of the grounds and any application for a variation of these orders by the applicant on grounds that the respondent has failed to make a payment due by him on the car which she drives or a child support payment may be made on 24 hours’ notice to the respondent, or with leave, ex parte.
(6)The orders when formally taken out are to be endorsed under Supreme Court Rules 2000, r883, with a notice naming the respondent and stating that he is liable to imprisonment or sequestration of property if he refuses or neglects to make the payments ordered at the times, in the amounts and in the manner ordered.
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