WESTACOTT & DUNWOODY

[2019] FamCA 531

FAMILY COURT OF AUSTRALIA

WESTACOTT & DUNWOODY [2019] FamCA 531

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where consideration of applicable principles – Where husband has onus proving inability to support himself adequately – Where such not established on the evidence of the husband – Where application dismissed.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 72, 74, 75(2), 90E

Bevan & Bevan (1995) FLC 92-600
Redman and Redman [1987] FamCA 2

APPLICANT: Mr Westacott

RESPONDENT: Ms Dunwoody

FILE NUMBER: PAC 1144 of 2019

DATE DELIVERED: 9 August 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 15 April 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Dorter Family Lawyers And Mediators

COUNSEL FOR THE RESPONDENT: Mr Lloyd

SOLICITOR FOR THE RESPONDENT: Blanchfield Nicholls

Orders

1. That the husband’s application for interim spousal maintenance be dismissed.

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 Westacott & Dunwoody 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 PARRAMATTA

FILE NUMBER: PAC 1144 of 2019

Mr Westacott

Applicant

And

Ms Dunwoody

Respondent

REASONS FOR JUDGMENT

1. The application for determination is an application for interim periodic spousal maintenance sought by the husband in the context of primary proceedings commenced by him by Initiating Application filed 13 March 2019 seeking orders as to property adjustment as between himself and the respondent wife.

2. There are significant issues outstanding between the parties in relation to a section 90B financial agreement dated 12 August 2005 entered into in contemplation of marriage, a subsequent termination agreement relating to that financial agreement and proposed property orders the subject of an Application for Consent Orders filed on 11 December 2018 that was later dismissed for want of any response to requisitions raised by the Registrar. Those issues will be the subject of later determinations.

3. It is to be noted that the financial agreement dated 12 August 2005 purported to deal with the issue of spouse maintenance in the following terms:

   16.If the parties separate neither party shall be entitled to receive any spouse maintenance from the other party.

4. The efficacy of such a provision in the context of the parties’ relationship in the event that the financial agreement is ultimately found to be binding is governed by the provisions of s 90E of the Family Law Act 1975 (Cth) (“the Act”). That section provides (as it did as at 12 August 2005):

   Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children

   A provision of a financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies:

   (a)the party, or the child or children, for whose maintenance provision is made; and

   (b)the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be.

5. The provision in the financial agreement clearly does not comply with the requirements of the section in that there is no amount provided for or any value as to property attributable to the maintenance of either party. The provision is thus void and no bar to the present application.

Context

1. The husband commenced proceedings by way of his Initiating Application filed 13 March 2019.  He seeks orders by way of property adjustment and, otherwise, inter-alia an interim order for the provision of spouse maintenance in the sum of $750 per week.

2. Subsequently on 1 April 2019 the husband filed an Application in a Case seeking injunctive orders in relation to his occupation of the real estate property situate in Town B owned by the wife and that she be restrained from selling, disposing of, mortgaging, encumbering or leasing that property without his consent or order of the Court.  He, otherwise, repeated the orders sought by him in relation to periodic spouse maintenance in the sum of $750 per week.

3. For her part, the wife filed a Response to the husband’s Application in a Case on 15 April 2019, relevantly, seeking that the husband’s interim application for periodic spouse maintenance and injunctive orders be dismissed.

4. The interim issues as to spousal maintenance were heard on 22 May 2019.

5. On 22 May 2019 the parties agreed to interim orders in the following terms:

   (1)Pursuant to s 114(1) the Applicant Husband shall have sole and exclusive occupation of the property G Street, Town B (“the Town B property”) until 5.00 pm 13 July 2019.

   (2)The Applicant Husband shall vacate the Town B property on or before 5.00 pm 13 July 2019 and shall remove all his belongings and personal effects at that time.

   (3)The Applicant Husband shall maintain the Town B property in a clean and proper state for the period of his occupancy pursuant to this order.

   (4)The Applicant Husband shall be responsible for any damage caused to the Town B property during the period of his occupancy pursuant to this order and shall repair and make good any such damage prior to vacating the Town B property on or before 5.00 pm 13 July 2019.

6. Such orders resolved the questions of jurisdiction as to the injunctive relief sought by the husband and left for determination the issue of periodic spouse maintenance only.

Documents relied on

1. The husband relied upon:

   a)his affidavit filed 13 March 2019;

   b)his affidavit filed 12 April 2019;

   c)the affidavit of Dr C filed 12 April 2019;

   d)his financial statement filed 13 March 2019; and

   e)his updated financial statement filed 12 April 2019.

2. The wife relied upon:

   a)her affidavit filed 17 May 2019; and

   b)her financial statement filed 17 May 2019.

Background

1. The husband is presently aged 53 and the wife 51.

2. The parties commenced cohabitation in about February 2004 and subsequently married in 2005.  The parties separated on a final basis in early October 2018 after 14 years of cohabitation.

3. There are no children of the parties’ relationship.

4. Subsequent to separation the husband occupied the wife’s property at Town B until he was required to leave that property by the wife on 9 March 2019.  Subsequent thereto he had been accommodated by friends for a period. 

5. He asserts an inability to support himself adequately and hence the application for interim spousal maintenance.

The Husband’s evidence

1. The husband asserts that he has no accommodation available to him in circumstances where he was earning about $13,000 per annum as a “skilled worker”  but now asserts that he suffers from deep vein thrombosis “which prevents me from working”. 

2. The thrombosis affecting the lower part of his left leg is evidenced by a report from Dr D dated 19 March 2019.  A medical certificate from his general practitioner Dr C dated 22 March, 2019 certifies as to the husband:

   …suffering a blood clot in his lower leg and undertaking treatment with blood thinner for at least three months.  This will have an impact and limit his physical work as a skilled worker during the treatment…

3. In a separate report dated 12 April 2019 annexed to the affidavit of Dr C, the general practitioner confirms the husband’s diagnosis of deep vein thrombosis and his treatment with Warfarin.  Dr C expresses the opinion that the husband “is likely to gain full-time employment in the future”.

4. A component of the husband’s application for spouse maintenance is to enable him to rent a property in which he may live.  He asserts an agreement at the time of separation with the wife that he would be able to continue to live in the Town B property until he had alternate accommodation and that the wife would pay for the alternative accommodation “for a period of time”.  This agreement is reflected in the proposed minute of consent orders lodged with the Court on 11 December 2018 that provided for the wife to pay contribution to the husband’s rental of up to $450 per week for a maximum period of 26 weeks from the date of orders.  Regrettably, such orders were never made by reason of the parties ignoring requisitions raised by the Registrar in circumstances where it can only be inferred that they resiled from the proposed consent orders. 

5. The wife, the husband says, earns an income of about $97,500 per annum and has considerable assets with a gross value of about $5 million. Otherwise, he asserts over the period of the parties’ cohabitation significant renovations undertaken by him to the Town B property previously occupied by him and significant renovation and other work undertaken by him at the former matrimonial home owned by the wife at Suburb E.

6. As to the husband’s reasonable needs he relies upon his Financial Statement filed 12 April 2019.  He asserts no income although he describes himself as a self-employed skilled worker trading as “F Company”.

7. He asserts his estimated expenses are to be as follows on a weekly basis:

   Superannuation contribution                 $              5

   Health insurance  $              5

   Motor vehicle fixed expenses              $           51

   Food$         120

   Household supplies  $           20

   Electricity$           50

   Telephone$           50

   Motor vehicle running expenses          $           90

   Fares and car parking  $           10

   Medical dental optical  $           10

   Chemist and pharmaceutical                 $           15

   Gardening/lawn mowing  $              5

   Cleaning$              5

   Storage shed  $           36

   Total:$         472

8. There is no objective evidence as to any asserted component for rent save for the husband’s contention that “I will need to rent a property for approximately $500 per week.”

9. The husband in his updated Financial Statement reveals the following assets:

   Commonwealth Bank account              $6,425

   Motor Vehicle 1  $15,000

   Household contents  $2,000

   Tools equipment camera et cetera        $20,000

   H Superannuation  $117,445

10. Otherwise, he asserts a personal loan liability of $13,000.

Spouse Maintenance

1. Section 72 of the Act sets out the relevant provisions in relation to the right to spouse maintenance. The Court can make such order as it considers proper (s 74).

2. Section 72 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 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 a 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) of the Act.

3. In Redman and Redman [1987] FamCA 2, the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) said at [24]:

   …As Nygh J. said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order…Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.

4. There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle (see Bevan & Bevan (1995) FLC 92-600).

5. The husband asserts that he is unable to support himself adequately by reason of his “physical incapacity for appropriate gainful employment”.

6. The threshold issue of the husband’s inability to support himself adequately is put in issue by the wife. As such, the husband carries the onus of establishing the same on the balance of probabilities: s 140 Evidence Act 1995 (Cth). Such an onus is reinforced by the very words of the section that require the Court to impose an obligation to pay spousal maintenance “if, and only if”.  

7. The husband asserts that he cannot work “as a result of my diagnosis of DVT”, although he was working as at March 2019.  

8. The simple assertion of some diagnosis, illness or incapacity does not lead to such a conclusion absent further evidence. There is no evidence as to the difficulties, if any, he has in his work as a skilled worker that may preclude him working in that capacity or, indeed, in any other less rigorous employment. He gives no evidence as to endeavours to obtain other or alternate employment.  At worst it appears that he has some limited partial physical incapacity of a temporary nature. 

9. The medical evidence relied upon by him, in particular, the more recent affidavit of his treating general practitioner as at 12 April 2019 asserts that he is likely to gain full-time employment in the future.

10. The Court is required to have regard to relevant factors under s 75(2) of the Act.

11. Relevantly, in terms of the evidence relied on in this context they 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

    (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

    (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

    (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

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

12. In the absence of evidence to establish on the balance of probabilities an inability to support himself adequately by reason of age or a physical or mental incapacity for appropriate gainful employment these factors are of little utility.

13. The husband’s application for interim spousal maintenance is to be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 9 August 2019.

Associate:

Date:  9 August 2019