Woden and Silver (No 2)

[2015] FamCA 1108

FAMILY COURT OF AUSTRALIA

WODEN & SILVER (NO 2) [2015] FamCA 1108

FAMILY LAW – SPOUSAL MAINTENANCE – Husband’s application to discharge Orders made for the payment of periodic spousal maintenance to the wife – Where the wife has re-partnered and is in a stable and continuing de facto relationship – Where there are uncertainties associated with why the wife’s partner has not contributed to expenses which he should share – Where the spousal maintenance Order is varied in accordance with the husband’s application.

Family Law Act 1975 (Cth) s 83

APPLICANT: Mr Woden

RESPONDENT: Ms Silver

FILE NUMBER: WOC 367 of 2013

DATE DELIVERED: 11 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 December 2015

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Bailey Mullard Lawyers

Orders

IT IS ORDERED

1. That the Order for spousal maintenance made 15 January 2015 be discharged as at the date to which it stands paid.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Woden & Silver (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 367 of 2013

Mr Woden

Applicant

And

Ms Silver

Respondent

REASONS FOR JUDGMENT

1. Mr Woden (“the husband”) and Ms Silver (“the wife”) married in 2010 and were divorced on 8 July 2013. They have one child, B, who was born in 2008.

2. On 15 January 2015, Stevenson J made Orders for the payment of spouse maintenance by the husband to the wife in the sum of $200 per week. At that time, the wife’s income was found to consist only of social security benefits and child support.

3. In the proceedings now before the Court, the husband seeks to discharge the spouse maintenance order.

4. In support of his application, the husband relies on the Family Report dated 27 July 2015 which was prepared for the parenting proceedings. At Paragraph 5 of the report the Family Consultant records:

   [The wife] is self-employed as a …, and she also conducts workshops on “…”. She has been in a relationship with [Mr C] for the past seven or eight months and [Mr C] lives with [the wife] and [B].

5. B told the Family Consultant that she lives with her mother and “[Mr C]” who she calls “Dad”.

6. Mr C told the Family Consultant that he teaches part time at University D where he is completing his PhD.

7. The wife and Mr C are engaged to be married.

8. The wife opposes the application.

9. She relies upon a Financial Statement sworn 10 September 2015 and an affidavit sworn by her on the same day.

10. In her Financial Statement the wife discloses that she is in receipt of benefits of $266 per week and that she receives child support of $249 per week for B. She deposed that Mr C’s income is $497 per week.

11. At Part F of the Financial Statement, the wife indicates that no expenses are paid by Mr C on her behalf.

12. The wife’s major expense is rent of $550 per week, presumably of premises suitable to house all three members of the family. One third of the rental expenses are claimed as a business expense, presumably for the wife’s business, “E Pty Ltd”. Apparently Mr C makes no contribution to the rent.

13. Annexed to her affidavit is a profit and loss statement prepared by her for Centrelink in relation to the business. In the period 1 July 2015 to 8 September 2015 the business earned a gross income of $1,361 and incurred expenses of $2,816, of which the largest component is described as “Other”, in the sum of $2,053 and not otherwise detailed. In, the approximately, two month period covered by the statement, the business incurred telephone costs of $459.

14. At Part N of her Financial Statement, the wife claims the whole of her electricity costs as her expense, although those costs should presumably be shared between the wife, Mr C and B. She claims $60 per week for motor vehicle expenses although she deposed in her affidavit that she does not own a car and drives Mr C’s car. Presumably some of those expenses are his. She claims $11 per week for children’s activities and $75 per week for child minding as her own expenses rather than B’s. She claims education expenses although there is no evidence of any course of study. She claims gardening/lawn mowing expenses but does not explain why such an expense is necessary.

15. There is no evidence from the wife of any attempt to obtain employment which might be better paid than her current chosen employment and no basis on which the Court could be satisfied that, if she chose to do so, she could not obtain alternative employment which, although modestly paid, might cover her reasonable expenses.

16. Neither is there any evidence of the ability of Mr C to contribute to the expenses of the family by undertaking paid employment, even on a part-time basis.

17. B is at school. Presumably Mr C assists with B’s care. There is no evidence which explains why either or both of them is unable to undertake some paid employment, consistently with their obligations to care for B and Mr C’s academic work.

18. The modification of spouse maintenance orders is governed by the provisions of s 83(2) of the Family Law Act 1975 (Cth). Those provisions are set out below:

    (2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

    (a) that, since the order was made or last varied:

    (i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);

    (ii) the circumstances of the person liable to make payments under the order have so changed; or

    (iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such;

    as to justify its so doing;

    (b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;

    (ba) in a case where the order was made by consent--that the amount ordered to be paid is not proper or adequate;

    (c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.

19. The husband has established that, since the making of the Order for spouse maintenance, the wife has entered into a stable and continuing de facto relationship. That fact, coupled with the uncertainties associated with Mr C’s contribution to expenses which he should share, justifies the variation of the order in accordance with the husband’s application.

20. The evidence does not allow me to assess whether the Order was paid up to the date on which the de facto relationship commenced. The wife in her affidavit deposed to the issue of Third Party Debt Notices which recovered two amounts. A third Notice has been issued seeking arrears from 14 April 2015 and I therefore assume that the wife concedes that maintenance was paid or recovered up to that date.

21. In July 2015, the wife had been living with Mr C for “seven or eight months”. I cannot say with certainty that this information was withheld from Stevenson J in the hearing conducted on 12 January 2015. However, if the wife and Mr C were not living in a de facto relationship on 12 January 2015, it must have commenced immediately thereafter. That fact was withheld from the Court and from the husband until the release of the Family Report on 28 July 2015.

22. The obligation upon the wife of full and frank disclosure is ongoing throughout the proceedings. It was her obligation to inform the husband and the Court when she entered into a de facto relationship. She did not do so.

23. In those circumstances it is appropriate that the Order be discharged as at the date to which it stands paid.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 December 2015.

Associate:  SNK

Date:  11/12/2015