WORTHAM & WORTHAM

[2015] FamCA 395

FAMILY COURT OF AUSTRALIA

WORTHAM & WORTHAM [2015] FamCA 395

FAMILY LAW – PROPERTY – INTERIM – SPOUSAL MAINTENANCE – Characterisation of payment – Where the wife seeks an order for spousal maintenance –Where the husband  claims that the amount the wife is seeking is unreasonable –Where the wife’s capacity to earn is not adequate to support herself – Where the court orders the husband to pay the wife spousal maintenance –

FAMILY LAW – COSTS – Where the wife seeks orders for costs – Where each party’s costs are reserved

FAMILY LAW – INJUNCTION – EXCLUSION FROM MATRIMONIAL HOME – Wife sought injunction to restrict the Husband from the property – Husband had no intention of entering property – Application not pursued

Marchant & Marchant (2012) FLC 93-520

Family Law Act 1975 (Cth)

APPLICANT: Ms Wortham

RESPONDENT: Mr Wortham

FILE NUMBER: SYC 5894 of 2014

DATE DELIVERED: 22 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 4 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Petrie

SOLICITOR FOR THE APPLICANT: McDonald Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hudson

SOLICITOR FOR THE RESPONDENT: Cameron Legal

Orders

1. The husband is to pay the wife interim spouse maintenance in the sum of $580 per week until 1 July 2015.

2. Until 1 July 2015 the husband is to cause the lease payment due in relation the wife’s motor vehicle … to be met as and when it is due for payment.

3. As and from 1 July 2015 the husband is to pay to the wife as interim spouse maintenance the sum of $856 per week.

4. The wife’s application for lump sum urgent spouse maintenance as sought in paragraph 4 of her Amended Application in a Case filed 4 February 2015 is dismissed.

5. The husband is to pay or cause to be paid  the following:

   (a)All payments of principal and interest as they fall due as required in respect of the mortgages to Westpac Banking Corporation secured over the title of the parties’ Suburb B property and registered as numbers 82256256 and 8517232;

   (b)All municipal council rates and water rates as and when they fall due in respect of the Suburb B property;

   (c)All insurance premiums required to renew/continue a policy of insurance in respect of the Suburb B property.

6. The husband is to cause to be paid the lawn mowing costs for the Suburb B property.

7. The court notes the statement to the court made by the husband through his counsel that he will not enter upon the Suburb B property without a specific invitation from the wife to do so.

8. The orders sought by the parties in relation to costs to cover their future litigation in this court together with interim orders sought for the sale of property are adjourned to 10.00 a.m. on 11 September 2015 for 2 hours.

9. Each party’s costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Wortham & Wortham 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: SYC 5894/2014

Ms Wortham

Applicant

And

Mr Wortham

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the court is an application by the wife, Ms Wortham, and styled Amended Application in a Case filed 4 February 2015. By that application she seeks orders for interim spouse maintenance, urgent spouse maintenance, payment of outgoings in respect of matrimonial property, injunctions, costs, and an order for the sale of a property at C Town. The husband, Mr Wortham, by his Response to an Amended Application in a Case filed 16 February 2015, opposes the orders sought by the wife. He seeks orders for the payment of funds to the wife without those being characterised as interim property, spouse maintenance, urgent spouse maintenance or injunction. He seeks that the trial judge determine how those payments should be apportioned. (see Marchant & Marchant (2012) FLC 93-520).

2. The payments the husband says should be made are as follows:

   a)$2,084 per month to the wife;

   b)Loan repayments in respect of the wife’s European motor vehicle;

   c)Council and Water rates in respect of the property at Suburb B;

   d)Electricity and Gas expenses associated with the wife’s occupation of the Suburb B property.

3. The husband then seeks that the parties do all things necessary to raise a loan of $200,000 from Westpac Banking Corporation secured over the property at Suburb B. Of that sum, $90,000 be paid to each of the parties to meet costs which they may incur, including living costs. The balance to be retained and used to meet mortgage payments pending the determination of outstanding property proceedings.

4. The interim spouse maintenance sought by the wife is for $3,727 per month. This equates to $860 per week. The husband is currently paying $480 per week directly for the support of the wife. Other payments are made by the husband which indirectly provide for the support of the wife. Those payments are set out later in these reasons.

5. It is common fact that the husband currently pays $1,195 per month to D Pty Ltd finance in respect of the leasing costs for the wife’s car. Both parties agree that those payments will cease at the end of June 2015. That payment translated to a weekly figure represents $276.

Interim Spouse maintenance threshold

1. Section 72 of the Family Law Act specifies 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 party is unable to support herself or himself adequately. The section provides other detail, however, in this case, there is no issue that the wife does not have the capacity for appropriate employment. It is therefore conceded that she does not have the capacity to support herself adequately.

2. There is no attack of substance on the stated need of the wife as recited in her evidence and the matter at issue between the parties is the husband’s capacity to contribute towards the maintenance of the wife.

3. There is no issue that the husband will agree to pay spouse maintenance in the sum of $480 per week, pay the wife’s car lease payments of $276 per week, pay the electricity and gas expenses for the property occupied by the wife at Suburb B, together with the lawn mowing expenses in respect of that property, pay the mortgage rates and insurance relevant to the Suburb B property.

4. An issue between the parties was defused by the husband having the court note that he has no intention to enter upon the Suburb B property without the wife’s prior permission having been given.

5. The first issue to be addressed, therefore, is the husband’s capacity to meet the wife’s assessed need for financial support. The wife discloses in her Financial Statement filed 27 September 2014, her income, from sources other than the husband, amounts to $11 per week. This arises from dividends from shares and interest on a Commonwealth Bank account. The wife disclosed that she had a savings account held in her sole name in which there was $4,900. The wife discloses no other source of support or asset which she might reasonably use to meet her ordinary expenses of living.

6. In her Financial Statement the wife discloses a need of $1,206 as a reasonable expenditure, and in addition to those sums, she needs a further $257 per week to meet credit card liabilities, medical benefits insurance, registration for her motor vehicle and personal life insurance expenses. Notwithstanding those stated expenses she requires to meet her support, she nonetheless seeks only the sum of $860 per week.

7. The husband’s Financial Statement was sworn on 3 November 2014. He discloses a total weekly income of $6,979, of which the provision of a utility truck is not a cash component yet included in that total. The cash component therefore received by the husband as income is $6,691. As against that, his expenditure for items 19-28 and item 30 amount $5,722. The husband in his evidence said that he had ceased making loan repayments as detailed in item 29 of his Financial Statement. In addition to those expenses, the husband claims $1,254 as his average weekly expenses. Those expenses include $218 per week for gym fees and training, $75 per week for petrol, and $90 per week for maintenance in relation to the vehicles he uses. Other submissions or concessions made by the husband show that his motor vehicle expenses are reimbursed to him through his employment. If those sums are deducted, therefore, the husband’s weekly expenses are reduced by $383 per week to $871, giving his total expenses on a weekly basis as $6,593. That equates then to an excess of available income over expenses of $98 per week.

8. The wife in her submissions submitted that some of the husband’s expenses should be seen as either exaggerated or unnecessary. Particulars of those expenses are as follows: house repairs: $75 per week, clothing and shoes: $120 per week, cleaning: $50 per week. It is submitted on behalf of the wife that no evidence was provided to support those payments and that they are in the circumstances of this case unreasonable.

9. This is an interim application for spouse maintenance. The court is unaware of each of the parties’ circumstances to a level which would justify criticism or rejection of figures in Part N of Financial Statements unless such expense, on the face of it, appeared to be unreasonable.

10. When the Part N portions of each of the parties’ Financial Statements are considered alongside each other, a significant number of the expenses claimed are remarkably similar. For my part, I can see nothing in either of the parties’ expenses which at first glance would appear to be extraordinary. In those circumstances in an interim application I would not exclude the expenses of the husband as urged by the wife.

11. It is clear that the husband’s ability to increase payment of spouse maintenance immediately would amount to about $100 per week, and upon the expiration of the lease payments required for the wife’s motor vehicle in June of this year, a further $276 a week would become available. I am satisfied the husband could reasonably meet a payment of interim spouse maintenance as and from 1 July 2015 of $856 per week. I will so order. Until 1 July 2015, I assess the husband’s capacity to pay $580 per week, and I will so order.

12. The wife seeks an urgent spouse maintenance payment pursuant to s 77 of the Family Law Act in the sum of $15,731. The wife’s evidence is that she needs those funds immediately to pay medical bills and additional living expenses. The wife relies on her affidavit sworn 18 February 2015. She sets out ongoing liabilities which she has over and above the ordinary weekly expenses. Her claim for urgent spouse maintenance in the sum of $15,731 has not been calculated pursuant to her stated need. The sum sought is identical with the sum which the wife says she is entitled to as recorded to in the accounts of the Wortham Family Trust. She says this sum is recorded in the 2013 Trust tax return and she is seeking payment of that amount. She annexes a copy of the 2013 Trust accounts. The document annexed and marked “S” to the wife’s affidavit is a statement of distribution of income from the trust and shows that in the year ending 30 June 2003, the wife’s share of the income of the trust was $78,099. Of that sum, $15,731 was attributed non-primary production sources. The nature of the concession alleged to have been made by the husband (as referred in paragraph 58 of the wife’s affidavit sworn 18 February 2015) is not specified.

13. In any event, the husband asserts that the balance of cash available in the Wortham Family Trust is as specified in Exhibit H1. In that exhibit, being a list of accounts held by the husband or operated by the husband, the account for the trust is account number 149262 and shows a balance of $784.41 credit. As against that, the wife says Exhibit “R” to her affidavit sworn 18 February 2015 shows the balances of that account between 29 September 2014 and 20 January 2015. As at the last date, the credit balance was $35,486.69. Prior to that date, the running balance in the accounts showed a minimum balance of $5,000 and mostly balances of above $25,000. The deposits to the account from time to time are described predominantly as “deposit Bbmps Bbm distribution”. There is no current explanation for the balance of the account being less than $1,000, nor is there evidence to suggest that at any time in the future significant deposits will be made to the account. Further evidence would be required of the significance of this account in the scheme of the parties assets and earning capacities to be able to predict that (a) significant funds will be deposited to the account in the near future (b) those funds ought to be made available for the wife’s use as opposed to the husband’s or any other use. At this stage there is insufficient funds to meet the order sought by the wife and insufficient evidence to enable the court to confidently make an appropriate order for payment to the wife. I would therefore decline, at this time, the order for urgent spouse maintenance as sought by the wife.

14. The husband does not oppose making the orders for payment of the mortgage payments on the Suburb B property, the council and water rates on the property and the insurance premiums. I will therefore make an order as sought.

15. In paragraph two of the wife’s application for spouse maintenance, she seeks not only the cost of monthly lease payments for her car to be paid, but in addition registration, third party and comprehensive insurance fees, fuel to an amount of $80 a week, and service and maintenance costs. However, the motor vehicle registration costs for the wife’s motor vehicle are included as an ongoing expense at item 26 of her Financial Statement. The petrol and maintenance costs are included as a weekly expense in Part N of her Financial Statement. The wife does not give details of the insurance costs for the motor vehicle. In the circumstances I would be disinclined to make the orders sought by the wife in relation to the running expenses for her motor vehicle firstly because they are included primarily in her expenses for the purpose of determining her weekly spouse maintenance sum, and next because I assess the husband to have no further capacity to meet such an order.

16. An injunction had been sought by the wife to restrain the husband from entering or remaining on the Suburb B property, however, that was not pursued on the basis that the court noted the instruction from the husband through his counsel that he had no intention of entering upon the property without the consent of the wife to such entry.

17. There was serious dispute in relation to the costs order sought and the sale of properties by each of the parties. When the hearing commenced before me I was told that neither of the parties was pressing an order for a sale or mortgage of any of the real estate owned by the parties, however,  in the face of the wife pressing for a dollar for dollar cost order as set out in her application in a case, the husband renewed his application for the parties to effect a borrowing against the Suburb B property to meet each of their legal costs and in response thereto, the wife pressed her order for the sale of the C Town properties. Given that the time allocated for the hearing had concluded, and there was a pressing duty list to be heard and determined the balance of those matters was adjourned for hearing at 10.00 a.m. on 11 September 2015. Further, it came to my attention that the parties were to convene a conciliation conference with the Registrar of the Court on the day following the hearing before me, and in the absence of concluding a conciliation conference in general terms, the court ought not be dedicating its time to hearing such disputes where they may in fact be resolved with the assistance of a Registrar of the Court.

18. For those reasons I make the orders set out herein.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 22 May 2015.

Associate: 

Date:  22 May 2015