Wadhams & Wadhams
[2021] FCCA 2173
•26 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Wadhams & Wadhams [2021] FCCA 2173
File number(s): SYC 1903 of 2021 Judgment of: JUDGE BECKHOUSE Date of judgment: 26 August 2021 Catchwords: FAMILY LAW – interim parenting – spend time with –– child’s expressed view
FAMILY LAW – interim property – periodic spousal maintenance - interim lump sum spousal maintenance
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 72, 74, 75(2), 75(3) Cases cited: Garston & Yeo (No. 2) [2019] FamCAFC 139
Hall v Hall (2016) 257 CLR 490
Hanas & Jolaha (No. 4) [2019] FamCA 483
MS & PS (2006) FLC 93-268
Date of hearing: 26 August 2021 Place: Sydney Counsel for the Applicant: Mr Fermanis Solicitor for the Applicant: Vobis Equity Attorneys Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Purcell Lawyers Solicitor for the Independent Children's Lawyer: Ms Wilkins of Phillip A Wilkins & Associates ORDERS
SYC1903 of 2021 BETWEEN: MR WADHAMS
Applicant
AND: MS WADHAMS
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
26 AUGUST 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The matter is listed for mention on 8 November 2021 at 9:30am.
2.Orders 15, 16, 17 and 22 of the Orders made on 6 April 2021 remain in full force and effect.
3.The child, X born in 2010 (hereinafter “the child”), be permitted to contact each parent by telephone or any other electronic medium in accordance with her wishes and neither parent shall hinder or prevent that communication.
4.By way of lump sum interim spousal maintenance, and in addition to any spousal maintenance arrears or periodic payments, the Husband pay to the Wife the sum of $2,500 within 14 days.
BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:
5.Within fourteen (14) days of the date of these Orders, each parent shall do all things and sign all documents necessary to enrol in the following courses, and shall thereafter attend at such courses as directed by the course provider until the completion of the said course:
(a)Tuning in Teens; and
(b)Parenting After Separation or Keeping Kids in Mind.
6.Upon completion of such courses set out in Order five (5) herein, each parent shall provide a certificate of completion to the Independent Children’s Lawyer.
7.Each parent shall be restrained from denigrate the other in the present or hearing of the child.
Family Report
8.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report.
9.The Family Report to deal with the following matters:
(a)The benefit to the child of a meaningful relationship with each parent.
(b)The capacity of each parent to protect the child from harm.
(c)The capacity of each parent to promote the psychological, emotional and educational well-being of the child.
(d)The insight of each parent into the children’s needs.
(e)The attitude of each parent to the responsibilities of parenthood.
(f)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(g)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
10.The parties send copies of all of their court documents to the family report writer within 7 days of being requested to do so by the family report writer.
11.The Family Consultant has leave to view all material produced under subpoena and released for inspection.
12.The Family Consultant has leave to view all material filed in the proceedings before or after the release of the Family Report.
Release from Harman undertaking
13.The Court release the Respondent from the implied Harman undertaking in respect of the Initiating Application filed 17 March 2021, Affidavit of Mr Wadhams filed 17 March 2021, Notice of Risk filed 17 March 2021 and Affidavit of Mr Wadhams filed 26 August 2021 filed in this proceeding, and have leave to use the affidavit in the criminal and ADVO proceedings currently before the Local Court of New South Wales.
THE COURT NOTES THAT:
A.The Wife’s compliance with Order 5 of the interim consent orders is subject to her having a computer to complete the courses.
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 under the pseudonym Wadhams & Wadhams is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
These are settled reasons for judgment that were delivered ex tempore on 26 August 2021. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references included.
The parties are the parents of X who was born in 2010 and who is 11 years old.
Proceedings are before the Court in relation to both property and parenting matters. The matter was listed today to make an interim determination on the mother’s application for spousal maintenance as well as some remaining issues in dispute about the interim arrangements for X’s care.
PROPOSALS AND DOCUMENTS RELIED ON
The parties have all helpfully filed Outline of Case documents, and I refer to all three of those documents.
The father relies on the following documents:
(a)Initiating Application filed 17 March 2021
(b)Affidavit of Mr Wadhams filed 17 March 2021
(c)Affidavit of Mr Wadhams filed 25 August 2021
(d)Financial Statement filed 25 August 2021
The mother relies on the following documents:
(a)Amended Response filed 25 August 2021
(b)Financial Statement filed 24 August 2021
(c)Affidavit of Ms Wadhams filed 13 August 2021
The Independent Children’s Lawyer (ICL) relies on the following documents:
(a)Child Inclusive Conference Memorandum dated 2 August 2021
The matter was listed at 2.15 pm. Submissions commenced at around 3 pm and concluded at around 4.15 pm. Neither party was cross-examined.
Oral submissions were made and written submissions, as I have indicated, were also received in the way of an Outline of Case document. I should make the point that this is a short form judgment given that it is now 6 pm.
In terms of the position of the parties, it is as follows. From the point of view of the wife, she is seeking orders that the husband pay spousal maintenance in the sum of $840 per week. That is an increase from the current orders that require him to pay the $250 a week.
She is also seeking an order that the husband pay lump sum maintenance to her in the sum of $10,000, and she is seeking parenting orders that are consistent with those sought by the ICL in her Outline of Case document.
The applicant father (I say “applicant” because he is the applicant in relation to the parenting matters) seeks some orders as proposed by the ICL in relation to X, but additionally he seeks an order that his time with X be increased such that he has her overnight each Wednesday from after school until Thursday before school.
In addition, he seeks a very specific communication order; that the mother be at liberty only to communicate with X when she is in his care between the hours of 7 pm and 8 pm.
He seeks that the application of the applicant wife for periodic and lump sum spousal maintenance be dismissed.
I should also note that both parties have sought the release of Harman undertakings in respect to material that has been filed in these proceedings for use in proceedings that are currently before the Local Court of New South Wales. The parties reached agreement on this issue, and it will be incorporated into the orders that are made by consent today. Those orders were marked as Exhibit 2.
BACKGROUND
By way of background to the matter, the father is Mr Wadhams. He was born in 1977 and is aged 43.
The respondent mother is Ms Wadhams. She was born in 1974 and is aged 46.
The parties began cohabiting in 2005 and were married in 2005.
They separated under the one roof on 2 August 2020, although the date of physical separation would appear to be 11 March 2021 when the wife left the home with X and moved into her own accommodation.
As this is an interim matter, there are no findings of fact that are made today apart from matters that are agreed between the parties.
By way of additional background, I provide the following information.
The matter came before the Court on 6 April 2021 when orders were made by consent. Those orders contained specifically, and relevant to this matter, an order that the husband pay the wife $250 per week of spousal maintenance and that he pay the wife the sum of $6000 by way of a lump sum amount of spousal maintenance.
The parties were ordered to attend a Child Inclusive Conference on 2 August 2021.
An ICL was appointed and orders were made to facilitate that appointment.
In relation to the child X, it was agreed that she would reside with the mother and spend every second weekend with her father from Friday to Monday and each Wednesday evening from after school until 8 pm.
On 16 July 2021, the wife alleges that the husband ceased paying her the amount of $250 per week.
PARENTING
I will first turn to the matters arising from the application for parenting orders.
As I have indicated, currently there are orders that were made on 6 April, and some additional orders will be made today by consent. The two matters that remain in dispute in relation to the parenting matter, as I have indicated, is the additional night and the communication issue.
The Law
The law that guides the making of decisions in relation to parenting matters is contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”), and when making parenting orders the Court must consider what is in the best interests of X pursuant to section 60CA.
Her best interests are determined by a combination of the objects and principles under section 60B as well as the primary and additional considerations in section 60CC.
In this matter, I must be guided by the need to protect X from harm over the benefit of her having a meaningful relationship with her parents. For today’s purposes, that is not such a significant determination, and I am more guided by the secondary considerations set out in section 60CC(3).
The independent evidence
I am greatly assisted in making a decision about what orders would be in X’s best interests by the Child Inclusive Conference Memorandum. The parties were seen by Family Consultant Condon on Monday 2 August 2021 separately, and the Child Inclusive Conference Memorandum has been released to both parties.
Of note in that report, the father reported that X did not want to spend overnight time with him and he did not support that. He said there are no grounds upon which X should not be spending equal time with him.
I note, however, his position has now moved.
The mother said there was an incident between X and Mr Wadhams, the father, which caused X serious distress. It caused her to lock herself in a bathroom, and she was refusing to spend the night in her father’s care because he had confiscated her mobile phone and, she said, was screaming at her.
On that occasion, the mother said X was distressed and demanded that she be collected by her. The mother said she was not able to collect X because of the ADVO. She said she then called the police, who undertook a welfare check on X, and X remained with her father that evening.
In the affidavits of the parties, and particularly the affidavit of the mother, there appears to be high conflict between the parties and a constant involvement by the father of X in the proceedings. She is certainly a child in the middle of the parental conflict.
When X saw the Family Consultant, there were many observations made, but particularly X had a clear view that she did not want to spend any further time with her father than what the current arrangements provided for.
She said she did not like the overnight part because she feels uncomfortable. She explained that the house did not have great memories for her and she found it hard being separated from her mother.
X said one of the biggest difficulties in spending time with her father is the lack of support for her to call her mother, and X said that the changeovers were not ideal either.
X expressed concern that her father speaks negatively about her mother, and X said she did not have a positive relationship with the paternal grandmother either, but mainly because she overheard her father talking in Language B to the maternal grandmother and saying what X reported were mean things about her mother, such as calling her “dumb” and “selfish”.
X said to the Family Consultant that she accepted her current parenting arrangements for now. She reiterated in her interview that she does not want any more time, including the school holidays, and wants the current arrangements to stay as is.
In terms of the future directions for the matter, the Family Consultant observed that X impressed as a thoughtful and articulate young person, seems to value her respective relationships with each parent.
X’s preference to live primarily in the maternal home was clearly and candidly expressed to the Family Consultant. Having said that, she obviously values her relationship with her father.
The other recommendation was this. It is suggested that X’s view be respected at this time, being no additional time with her father. Any pressure X feels in relation to her parenting arrangements could have the effect of damaging her relationships with one or both parents.
X is approaching adolescence now, and it is imperative that she is able to retain good relationships with both her parents as she navigates adjusting to the family breakdown as well as the often difficult teenage years.
The father’s submissions
The father says, in relation to the orders he is seeking, that on 29 May X tried to telephone the mother. 29 May was the time when there was an incident, and the father was concerned that the incident involving the phone culminated in a police event. He said that liberal telephone contact of that manner actually exposes X to conflict between the parents. He accepts that X should be able to communicate with the mother, but says a liberal approach leads to X having competing loyalties and the alignment – or her alignment gravitating towards her mother.
He, therefore, seeks an order limiting the communication that the mother might have with her because it will minimise distress. Interestingly, he does not seek for his telephone calls or communication to be restricted in any way.
In relation to the additional night, he says that while X has expressed views, it is in her best interests that she has an additional night with him. He said it would have the effect of avoiding future conflict.
He says there has been conflict at changeovers and whilst COVID means that things will not always be as they are, school changeovers would at least avoid potential conflict in the future.
He also says that she is at an age when she has to enjoy the time with her father and it will alleviate conflict and quell the issue she has with her father if she can spend more time with him.
In fact, in his view, it is a natural progression to overnight time. He is reluctant to have the amount of weight that the Family Consultant attributed to X’s views.
The mother’s submissions
In relation to the mother, she says that the father seeks to increase the time and it is a significant increase in time. She is of the view that it is not fair that the father seeks unfettered communication with X, but that he seeks to curtail her time.
She says that X is a thoughtful and articulate girl who values her relationships with both parents. She has clear views. She says she does not like overnight time because it feels uncomfortable, and it is clear that she historically has checked in with her mother several times each day.
She, therefore, says that it is unfair and confusing for her to limit the amount of time that she spends to one hour each day. She also says that a change requiring her to spend two more nights per fortnight is a significant change and may have an adverse impact on their relationship and it also exposes X to more denigration and conflict with the father and there is little benefit in that.
The Independent Children’s Lawyer’s submissions
The ICL relied on the expert evidence and said that X is clear that she does not want to increase her time with her father.
In relation to communication, she also added that there is a concern if X is denied the opportunity of communicating with her mother and, in fact, the restrictions may have a damaging relationship with her father as she may blame him for the restrictions.
The ICL also did not support an increase in time. She did not believe it would alleviate the conflict and it was against X’s view. In fact, in her view, it would only lead to further conflict.
The decisions judicial officers have to make in interim proceedings are difficult and often for good reason a conservative approach or one that is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome they desire or who thinks it may not be in the best interests of the child.
As I have said, having considered section 60CC(3), particularly the additional considerations, and carefully considered the Memorandum prepared by the Family Consultant, the affidavits filed by the parties and listened carefully to the submissions, I am not inclined to make the orders that the father is seeking because at this point in X’s life I am not convinced that they will be orders that are in her best interests.
X has expressed a clear view to the Family Consultant. She has been enmeshed in the parental conflict between the parties, and there is nothing in the evidence to suggest that it would be in her best interest to now increase her time with her father.
This is not to suggest that an increase in time between X and the father will not be something that can happen in future months or years, but until X settles into the current arrangements and the parties are able to avoid X being exposed to the parental conflict any further, I am not prepared to increase the time she spends with her father beyond the current orders.
Additionally, X has had difficulties, particularly set out on the occasion of 29 May when she has been in the father’s care. It is important that she has the security blanket and safety of knowing she can call her mother when she is distressed or upset, and for that reason, I am not prepared to limit her communication with her mother.
I will make the orders that are being sought by consent, and I will not make the orders that the father is asking me to make.
SPOUSAL MAINTENANCE
I will now turn to the issue of spousal maintenance.
In determining what orders I make for interim spousal maintenance, the issues for determination are as follows:
(a)firstly, whether the periodic maintenance paid to the wife by the husband should be increased from $250 per week to $840 per week or, alternatively, should I make any order at all; and
(b)secondly, whether the husband should pay a lump sum maintenance amount to the wife in the sum of $10,000 or such other sum as determined by the Court.
I have already provided some background to the matter, but note that currently there are orders in place for the husband to pay the wife the sum of $250 per week in spousal maintenance.
The mother gives evidence that no payments have been received since 16 July and he is currently in arrears in the sum of $1750.
The Law
I will now move to the law that applies to spousal maintenance.
In relation to the law that applies in consideration of interim spousal maintenance matters, section 72 of the Act sets out the basis on which a party to a marriage is liable to maintain the other party or, conversely, the basis on which the party to a marriage has a right to be maintained by that party.
72 Right of spouse to maintenance
(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 party, by way of the transfer of bested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
Section 74 of the Act provides the Court’s powers in relation to spousal maintenance proceedings.
74 Power of court in spousal maintenance proceedings
(1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
(2) If:
(a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b) either of the following subparagraphs apply to a party to the marriage:
(i) when the application was made, the party was a bankrupt;
(ii) after the application was made but before the proceedings are finally determined, the party became a bankrupt; and
(c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under this section in the proceedings;
the court must join the bankruptcy trustee as a party to the proceedings.
(3)If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.
(4)The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.
(5) If:
(a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b) either of the following subparagraphs apply to a party to the marriage (the debtor party):
(i) when the application was made, the party was a debtor subject to a personal insolvency agreement; or
(ii) after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and
(c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings;
the court must join the trustee of the agreement as a party to the proceedings.
(6) If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.
(7) The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.
(8) For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:
(a) the application is withdrawn or dismissed; or
(b) an order (other than an interim order) is made as a result of the application.
As referred to in section 72, section 75(2) sets out the matters and the only matters to be taken into account by the Court in exercising jurisdiction under section 74:
75 Matters to be taken into consideration in relation to spousal maintenance
…
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; 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 marriage 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 (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, 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
(ha) 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 marriage 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 79 in relation to:
(i) the property of the parties;
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; 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
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
I should note that section 75(3) provides that:
(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
In exercising its jurisdiction under section 74, a Court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
In the leading case of Hall v Hall (2016) 257 CLR 490 the High Court at [3], [4], [5] and [8] sets out the appropriate approach in considering an application for interim spousal maintenance as follows:
3 …The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That subsection provides that ‘[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…having regard to any relevant matter referred to in [s] 75(2)’.
4The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That subsection provides that, ‘[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part’.
5 A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters (s 75(1)). Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as ‘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’. They also include, by virtue of s 75(2)(o), ‘any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account’.
…
8 Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant (11). No doubt, on an application for an interim order ‘[t]he evidence need not be so extensive and the findings not so precise’ as on an application for a final order (12). But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order with finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).
As noted in Hall, an applicant seeking orders for spousal maintenance carries the evidentiary burden, and in this case the evidentiary burden rests with the wife.
In determining whether to make an order for spousal maintenance, it is appropriate for the Court to determine the issue in the following manner (Hanas & Jolaha (No. 4) [2019] FamCA 483 (“Hanas”) at [75] citing MS & PS (2006) FLC 93-268 per Coleman J), and I am going to set out four questions that I need to consider.
(a)Firstly, can the applicant support themselves adequately in terms of section 72 of the Act?
(b)Secondly, if not, what are the applicant’s reasonable needs?
(c)Thirdly, what capacity does the respondent have to meet those needs?
(d)And fourthly, what order is reasonable having regard to section 75(2) of the Act?
Furthermore, a claim for maintenance is not limited by reference to current expenses because an applicant applying for maintenance may not have the ability to pay for commitments necessary to support themselves and thus avoid incurring what otherwise would be a reasonable expense. Therefore, the focus on what is necessary for support. The authority for that proposition is the case of Garston & Yeo (No. 2) [2019] FamCAFC 139, which did incidentally cite Hall.
I am going to approach the application for the payment of lump sum maintenance to the wife on the basis of the stated law relating to interim spousal maintenance.
Is the wife unable to support herself?
The first question I need to determine is whether the applicant wife is unable to support herself adequately.
The financial statement filed by the applicant indicates that she has a total personal expenditure of $1191.50. She deposes a total average weekly income of $947.
In Part N of her Financial Statement, she sets out the totality of her expenses. The weekly average expenses she says that she pays for herself as well as X, total $997. In addition, she has other expenses, and those expenses are referred to in Part G.
The applicant has no income save for her income tested government benefits and family allowance and child support.
For the purposes of the exercise of the Court’s jurisdiction under section 74 of the Act, the Court must disregard the applicant’s entitlement to an income tested allowance or benefit, and I refer again to section 75(3) of the Act.
The applicant has the care of X, who lives with her on a full-time basis. As I have indicated, she currently has a child support assessment of $351 per week, but as I have also indicated, by reference to Part N of her Financial Statement, she has separate weekly expenses relating to X that total $547.50.
It appears from the applicant’s evidence, in particular her Financial Statement, that the child support amount she receives falls short of the costs she has to meet with respect to X.
Exercising some level of discretion might well reduce some of the amounts, in particular the amounts claimed for clothing and shoes, entertainment and holidays, but it is open to me to find that the periodic child support paid is consumed by X’s reasonable expenses and the wife still has more of her expenses to meet.
The applicant’s current standard of living appears in all the circumstances to be much lower than that which the parties enjoyed whilst living together and certainly lower than what the husband currently enjoys.
An issue of capacity was raised during the hearing. It was raised by the husband. He argued that the wife has the ability to obtain full-time employment and she must make attempts to exercise her earning capacity.
The mother gave evidence in her Affidavit of her attempts to find work, but it is the case that she has been in Australia for 16 years and has not worked at all during that time. She has been the primary caregiver for X, and this was something that the parties agreed to through the marriage and there is no reason to suggest that this now needs to immediately change. English is her second language. She, through her legal representative, indicated that she has found entering the workforce somewhat difficult due to COVID-19, but she has made inquiries.
The mother’s needs have not really changed since separation. However, the husband’s conduct appears to have increased the financial strain on her. She deposes that he cancelled her health insurance. Her legal representative indicated that her phone was cancelled. It has been put that he has delayed payment of the lump sum amount that was payable under the last orders, and in June 2021 he lodged a vehicle disposal notice which led to the wife having to pay insurance and transfer fees on the motor vehicle.
In addition, he owes her spousal maintenance of $1,750, but brings no application to say that he cannot afford to pay that amount apart from, of course, the Response and material he has filed today.
In all of the circumstances, the Court is satisfied, having regard not only that the applicant has the care and control of X, but by reason of her age and ability for appropriate, gainful employment as well as the other matters referred to above, that she has demonstrated that she is not able to support herself adequately.
What is the quantum of the wife’s reasonable needs?
The applicant’s average weekly expenses for food, household supplies, utilities, personal needs are as described and set out in her Financial Statement. As I have indicated, it may be that some of those expenses, such as clothing and shoes, entertainment and holidays, have been overstated, but by and large, she leads a fairly frugal existence.
Of her income set out in her Financial Statement of $947, I will not take into consideration the government allowances and benefits that she receives. That means she has an income from child support in the sum of $351.
She sets out her expenses and deposes that they are in the sum of $1170, and if you take out the $351 she receives for child support, it would appear that she is still in need of $840 per week. As such, she has demonstrated a need for an amount of $850 per week, as is evident in her Financial Statement, particularly from Parts F, G and N.
The husband’s capacity to pay
The respondent husband has not conceded that he has capacity to pay spousal maintenance as sought by the applicant.
His Financial Statement shows significant increases in his expenses since he filed his Financial Statement on 17 March 2021, and it might be worth at this point making some observations about that. While his total average weekly income has not changed – that is, it is $4,230 – his total personal expenditure has increased over that period of time from $4,305 to $5,271. The personal expenditure has, therefore, increased by almost $1,000 over that period of time.
There was some analysis of the expenditure that was put by the legal representative for the applicant mother. Particularly, she was critical that in April, following the orders being consented to, the husband entered into a hire purchase agreement for a new Motor Vehicle 1 worth $85,000. He now deposes that he incurs costs of $101 per week in relation to the registration of that vehicle, and in addition, a further sum of $227 arising from the hire purchase agreement. Noting that he ceased paying spousal maintenance on 16 July, it would appear that he prefers the importance of maintaining an Motor Vehicle 1 motor vehicle over his former spouse.
In addition, there are credit card payments that have increased from $263 per week in March to $412 a week in August. There is no explanation for why the minimum payments on that card have increased over that period of time.
In addition, the wife makes the following submissions:
(a)That the husband’s expenditure of $540 per week on food is excessive, even if it includes the purchase of cigarettes.
(b)That his expenditure on household supplies of $99 per week is excessive and unreasonable when compared to her expenditure on household supplies for her and X of $40 per week.
(c)That the gas and electricity have been twice counted and so they should be deducted.
(d)That the telephone of $123 per week seems excessive, particularly compared to the wife’s telephone costs of $8 a week.
The husband says that he needs the telephone for work and it involves a data allowance, but all the same, that would make the costs associated with his phone in the vicinity of almost $500 per month, and that sounds an excessive amount of money.
In relation to the motor vehicle, he claims double the amount of petrol that the wife claims, although that may be because he uses his motor vehicle for work. He does not indicate in his Financial Statement any allowance that he receives to repay him for the petrol used. He also claims entertainment and hobbies in an amount that is similar to the wife.
Having considered the husband’s Financial Statement in great detail and the expenditure, I am of the view that the following amounts could be deducted when considering what is reasonable for him to pay and contribute to the wife’s support.
I will take out food of $300 per week, household expenses of $60 per week, the utilities of $76 per week, $60 off the telephone amount per week, and $20 off the entertainment amount per week.
In addition, I will remove from consideration the $38 payment to his mother each week for the loan and the $149 difference between what he says the minimum credit card amount was in March compared to now. That leaves a savings of $703.
I will take out of consideration the amount that he is expending through the hire purchase of a new vehicle, leaving out the $227 as well as the insurance brings him back to an almost neutral position, that is, the position he was in when he agreed to the amount of $250 per week in April.
In my view, having considered all the matters associated with the financial circumstances of the parties, it is reasonable and the husband is capable of continuing to pay the wife the sum of $250 per week in spousal maintenance.
Lump sum maintenance
I now turn to whether I should make an order for the husband to pay a lump sum amount in addition to the periodic sum of $250 a week.
The wife seeks $10,000 in order to register her motor vehicle, buy furniture, buy a computer. She says that she needs a computer in order to complete a TAFE course and other parenting courses that she has agreed to complete in accordance with the orders that the parties have asked me to make.
The problem essentially is twofold. The first one is what is the source of the payment? The husband’s financial statement indicates that he currently has available the sum of $2,425 in one account and very low balances in all other accounts. He also deposes to having an offset account in the amount of $8,353. Having regard to that, it is difficult to see how I could make an order for him to pay the wife the sum of $10,000.
Furthermore, the husband argues, quite reasonably, that when he previously released $6,000 by way of a lump sum maintenance payment, that amount was also for the purposes of allowing the wife to buy furniture. The husband also says that there are two computers currently in the possession of the wife, although I heard no evidence of this and cannot conclude that this is the case.
The wife says two things. She says that the husband has always received bonuses and, in fact, directs me to the note that he has made himself in his Financial Statement attesting to the bonuses.
The husband also says that he has not had the bonus at all reflected in his income. We can only assume, therefore, that his income is in excess of what he has disclosed from time to time. However, I cannot make orders on the basis of what he might receive by way of a bonus. There is no evidence that he will receive it. There is no evidence of when he will receive it, and I cannot be satisfied that he would have capacity to pay the full amount.
I am concerned, however, that the mother does need some money to register her car, and, in fact, without her ability to register the car, she is unable to work and she is unable to look for work in order to re-establish herself, nor is she able to use a car to transport X. It may be that she has registered that motor vehicle. I have no evidence in relation to that.
The mother says that, alternatively, she would use some amount on a computer so that she could undertake a TAFE course to qualify as a translator or interpreter and she would then use that as a source of funding.
Having looked at the husband’s financial position, it seems to me that he could afford the sum of $2,500 as a one-off lump sum spousal maintenance amount in order to ensure that the wife is in a position to register a motor vehicle and undertake TAFE courses so that she can re-establish herself.
As I have indicated to the parties when this matter was before me this afternoon, ultimately the father appears to have incurred expenses and liabilities that place him at capacity and once all the assets are liquidified, the only remaining asset is the matrimonial home that will need to be sold. On that basis I will make one order for a lump sum amount of $2500.
Finally, in this matter, I am going to make the following orders.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 18 October 2021
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