Wesley and Lindsey

[2019] FamCA 787

FAMILY COURT OF AUSTRALIA

WESLEY & LINDSEY [2019] FamCA 787

FAMILY LAW – PROPERTY – Interim Property – Where the wife seeks spousal maintenance, interim property distribution and a child support departure order –Where the husband has substantially greater financial means than the wife – Where the husband consents to a child support departure order for final orders, but not interim - Orders for the husband to pay the wife $10,000 per month for spousal maintenance – Order for a child support departure order – Interim property distribution to the wife of $50,000.

Child Support (Assessment) Act 1989 (Cth) s 116
Family Law Act 1975 (Cth) s 72, 79, 117(2A)

Goldbaum & Yu (No. 2) (2019) FamCAFC 139

APPLICANT: Ms Wesley

RESPONDENT: Mr Lindsey

FILE NUMBER: SYC 1667 of 2019

DATE DELIVERED: 29 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 23 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Todd

SOLICITOR FOR THE APPLICANT: Morton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gardiner

SOLICITOR FOR THE RESPONDENT: Neville & Hourn Legal

Orders

IT IS ORDERED, PENDING FURTHER ORDER:

1. That the respondent pay to the applicant by way of spousal maintenance the sum of $10,000 per month.

2. That the respondent, pursuant to s116 of the Child Support Assessment Act1989 (Cth) pay by way of child support the following:

   (a)      A periodic payment of $5,000 per month or $1,153.85 per week;

   (b)School fees and the costs of uniforms for the attendance of the children at B Private School;

   (c)Half the costs of agreed extra-curricular activities for the children. 

3. That by way of interim property settlement, the respondent, within 14 days of the date of these Orders, pay to the applicant the sum of $50,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wesley & Lindsey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1667 of 2019

Ms Wesley

Applicant

And

Mr Lindsey

Respondent

REASONS FOR JUDGMENT

1. Ms Wesley (“the wife”) and Mr Lindsey (“the husband”) lived together in a de facto relationship between 2009 and November 2017. They have two children aged six years and almost five years.

2. Because the husband’s employment requires extended periods of travel, both overseas and within Australia, it is not in dispute that the wife has been required to be the primary carer of the children and that, for many months at a time, the husband is not in Australia.

3. The applications before the Court relate to spousal maintenance, interim property settlement and to child support.

SPOUSAL MAINTENANCE  

1. The wife seeks an order for the payment of spousal maintenance in the sum of $18,000 per month.

2. She relies on a Financial Statement sworn on 17 March 2019 and two affidavits sworn by her on 17 March 2019 and 23 August 2019.

3. The husband, who opposes the application, relies on a Financial Statement sworn on 1 May 2019 and two affidavits sworn by him on 1 May 2019 and 10  May  2019.

4. The husband filed a response to the wife’s application on 1 May 2019 in which he sought an order in terms that he pay spousal maintenance on an interim basis in the sum of $10,000 per month.

5. In a Minute of Orders tendered by counsel for the husband at the commencement of the hearing, he proposed that he pay spousal maintenance in the sum of $7,000  per month.

6. Thus it is conceded that the wife has met the threshold test in s72 of the Family  Law Act 1975 (Cth) (“the Act”), that she is unable to support herself.

7. It is also not in dispute that the husband has the ability to pay the amount which is sought by the wife.

8. He deposed, in his Financial Statement, to an income of $23,795.19 per week and expenses of $13,189.49 per week.

9. The husband’s claimed expenditure is not accurate. It does not include his Part  N expenses. It does include the total amount he repays for his credit card expenditure of $3,080 per week which I consider to be a “double dip” because the credit card was used to pay expenses that have already been claimed either in Part N or elsewhere.

10. In relation to the husband’s part N expenses, he claims costs of expenses referrable to “Other adult” of $1,077. I infer that those expenses refer to his “partner” with whom he deposes, in paragraph 35 of his affidavit sworn 1 May 2019, he intends to live. However, there is no evidence of the earning capacity or assets of the husband’s partner or why he is required to support her. The expenses claimed for “Other adults” include an entry for unspecified “Other necessary expenses” of $1,250 per week. Thus the husband claims expenses of $2,327, or $10,084 per month, in relation to this other adult.

11. There is no evidence that the husband has any obligation to support the other adult and I will deduct that sum from his claimed Part N expenses.

12. The husband’s Part N expenses for the purpose of this application are $2,668.

13. I find the husband’s expenses to be fixed expenses of $10,109.49 and Part N expenses of $2,668, a total of $12,777.49. Those expenses include the amount he currently pays for periodic support for the wife and the children of $2,307.20.

14. Thus, for the purpose of this application, the husband’s available income after payment of expenses is $11,102 per week.

15. Counsel for the husband sought, in submissions, to challenge the reasonableness of the wife’s claimed expenses.

16. He was unable to point to any statement in the husband’s two affidavits that gave notice that the wife’s expenses were challenged.

17. I reject the submission, if I understand it correctly, that because the husband filed a response to the effect that he should pay $10,000 per month spousal maintenance, the wife was on notice that her expenses were challenged. The effect of challenging the wife’s evidence of her reasonable expenses is to give to her the onus of proving the reasonableness of those expenses. If the husband does no more than propose an alternate figure, how is the wife to know which of her expenses is challenged? In relation to the reduced amount of $7,000 per month stated in the Minute of Orders, the wife received notice of that reduction only on the morning of the hearing and therefore that reduction could not constitute notice to her that her expenses were challenged.

18. If the husband sought to mount a case that the wife’s claimed expenses were not reasonable, then it was necessary that he specify which expenses were not reasonable and that he give any evidence relevant to that determination. In those circumstances, the onus of proving that her claims were reasonable would fall upon the wife. However, that is not what he did.

19. In any event, the husband’s affidavit material suggests that the husband has, in the past, acknowledged that the wife’s reasonable expenses were greater than $10,000 per month.

20. In his affidavit sworn 1 May 2019, he deposed:

    Up until April 2018, [the wife] was using a CBA credit card which had a limit of $18,000 for all living expenses including child related expenses, all expenses and outgoings on the [former matrimonial home], car running costs and home help. I would pay off the balance of the card on a monthly basis.

21. I take this to be a concession on the part of the husband that, until April 2018, it was reasonable for the wife to incur expenses of $18,000 per month although I accept that those expenses included the children’s expenses.

22. Further, the husband deposed that, in addition to the sum of $10,000 per month that he has paid to the wife, he has made lump sum payments in the following amounts:

    (a)$10,000 in late 2018 to facilitate the wife and the children moving to Canberra;

    (b)      $15,000 in April 2019 to cover rent and expenses;

    (c)$30,000 in six payments of $5,000 to cover birthday and Christmas presents for the children;

    (d)$20,857.15 on 29 April 2019 to cover six month’s rent in advance for the wife’s leased premises.

23. I take this to be a concession on the part of the husband that, in addition to monthly payments of $10,000, it was reasonable for the wife to incur, over the past period of about 11 months, further expenses totalling $75,857 or approximately $6,896 per month.

24. As to the reasonableness of the wife’s claimed expenses I reject the submission made by counsel for the husband that there is no evidence of her reasonable needs.

25. She has sworn a Financial Statement and completed Part N, setting out her discretionary expenses.

26. Aldridge J, sitting as a single Judge of Appeal in Goldbaum & Yu (No. 2) (2019) FamCAFC 139 stated:

    The Financial Statement was clearly admissible. Even if it was evidence based on estimates and on the respondent’s expenses during the relationship, it was capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue (s 55 of the Evidence Act 1995 (Cth)). It was not “so inherently incredible, fanciful or preposterous that it could not be accepted” (IMM v The Queen (2016) 257 CLR 300 per French CJ, Kiefel, Bell and Keane JJ at [39]).

    It follows that there was evidence available to her Honour which supported her findings.

27. However, I do not propose to allow all of the wife’s claimed expenses.

28. Her fixed expenses include rent of $850 per week. Counsel for the wife concede that half of the rent should be attributed to the children. The wife’s fixed expenses, for the purpose of these proceedings, are $635.

29. The wife claims Part N expenses of $3,080.

30. The claim for child minding expenses of $300 per week will not be allowed. That is a claim referable to Child Support.

31. The claim for $675 per week for educational expenses for the wife will not be allowed. The wife intends to enrol in a university course in psychology to qualify her for employment. There is no evidence that she cannot rely on HECS for the payment of her fees or that she will not, from her ultimate property settlement, be able to pay her fees or discharge her HECS debt.

32. I do not propose to allow the wife’s claim for holidays of $500 per week. These are interim proceedings. When the wife is arranging holidays using her own funds she can decide what level of spending is reasonable but I am not persuaded that the claim is reasonable on an interim basis. However, neither is it reasonable that she cannot enjoy holidays until the matter is finally resolved and I will allow $200 per week as a reasonable sum.

33. I assess the wife’s Part N expenses at $1,805 and her total expenses as $2,440.

34. I will round up that figure to $10,000 per month.

CHILD SUPPORT

1. The wife seeks, on an interim basis, a departure from the current assessment of child support. The most recent assessment, dated 12 September 2019, requires the husband to pay $2,973.33. The husband currently pays, in addition to the assessment, the school fees for the elder child, and the early learning fees for the younger child. Those fees total $27,205 plus extra-curricular activities and excursions.

2. The younger child will start school next year at the same school attended by her older sibling.

3. The wife seeks an order for the payment of $7,000 per month plus all costs associated with the attendance of both children at the private school, such costs to include uniforms. She also seeks payment by the husband of all of the children’s medical and dental expenses.

4. The husband, by his Minute of Orders filed in Court at the commencement of the hearing, sought an order that he pay the current assessment together with school fees, uniforms and extras and “all major medical and dental expenses such as day surery [sic] and hospital stays”.

5. However, on a final basis, the husband, by his response filed 1 May 2019 seeks an order that he pay $5,000 per month together with school fees, uniforms, all major medical expenses such as day surgery and hospital stays and half the costs of extra-curricular activities.

6. Counsel for the husband was unable to explain why the order sought by the husband on a final basis should not be made today on an interim basis.

7. There can be no dispute that a ground for departure has been made out or that it is just and equitable in the circumstances of this matter, to make a departure order. The husband seeks such an order.

8. The wife deposed that the children’s reasonable expenses, not including their education costs but adding half of the rental costs of $425 per week, exceed $5,000 per month.

9. There is no evidence upon which any assessment can be made in relation to medical expenses or what costs may be involved in “major medical expenses”.

10. I therefore propose to make an interim order in terms of the husband’s final order sought, excluding the provision for major medical expenses.

LUMP SUM PAYMENT

1. The wife seeks payment of $50,000 which is characterised to be by way of interim costs pursuant to s117 of the Act.

2. The source of the payment is the husband’s bank account ending in …54 which has a balance at 30 September 2019 of $132,675.

3. The wife abandoned her application for orders that the net proceeds of sale of the former matrimonial home be paid to her by way of interim property settlement. That order was opposed by the husband.

4. There was no real opposition by the husband to the payment of $50,000.

5. At the commencement of submissions, counsel for the wife was asked to address the question of whether the payment should be pursuant to s117 of the Act or an interim payment pursuant to s79.

6. In addressing the provisions of s117(2A) of the Act, the only factor that supports the payment of interim costs to the wife is the disparity in the respective income of the parties.

7. The effect of an order pursuant to s117 is that the money paid to the wife would come from the husband’s capital but not be counted as a transfer of capital to the wife such that it might be taken into account in any final calculation where paid costs are not necessarily adjusted. Further, the application of those funds would be limited to the wife’s costs.

8. It would be more equitable for the wife to receive a portion of her own entitlement which she can apply to whatever expenses she thinks appropriate.

9. The order will characterise the payment as interim property settlement. There could be no dispute that the amount is insignificant when compared with the wife’s ultimate entitlement to property settlement. The net assets of the parties exceed $3,000,000. They were in a de facto relationship for between eight and nine years during which time the wife was the primary, and often sole carer for the children.  The husband’s income for the next four years will exceed $1,200,000 per annum.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 October 2019.

Associate: 

Date:  29 October 2019