Wotton and Wotton

[2008] FamCA 797

FAMILY COURT OF AUSTRALIA

WOTTON & WOTTON [2008] FamCA 797

FAMILY LAW – SPOUSAL MAINTENANCE

Family Law Act 1975 (Cth)

APPLICANT: Mr Wotton

RESPONDENT: Ms Wotton

FILE NUMBER: SYC 3621 of 2008

DATE DELIVERED: 10 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 10 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR TOCKAR

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: MR ANDERSON

SOLICITOR FOR THE RESPONDENT: Musgrave Lister Family Lawyers

Orders

1. Orders and notations are made in accordance with the document titled “Minutes of Order” marked Exhibit A and attached hereto.

2. That the parties attend a conciliation conference at 9:30 am on 2 February 2009.  Each party must deliver to each other party and lodge with the Court at least 7 days before the Conciliation Conference, a Conciliation Conference document, failing which the conference may be vacated.

IT IS NOTED that publication of this judgment under the pseudonym Wotton & Wotton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC3621 of 2008

MR WOTTON

Applicant

And

MS WOTTON

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a number of interim financial issues in the context of a marriage celebrated in February 2000. The parties separated on 21 May of this year under one roof.  The parties started to live together in 1991.  They have two children, K and B, who are five and 23 months of age, respectively.  The parties agreed to some orders on 17 July of this year, which are described as a shared care arrangement but with B, because of his age, to be with his mother more of the time until he turns four years of age. 

2. The situation is that the wife rents a property at C and the husband continues to live in the former matrimonial home at T.  The husband is a scientist. The wife has been largely engaged as a Parent and Homemaker.  She has teaching qualifications, and more will be said about that later in these reasons.

3. A number of the issues between the parties have been compromised or will be compromised by them. The controversy relates to a claim by the wife for $1000 a week interim spousal maintenance; the conditions under which the husband continues to be restrained in relation to the parties' assets; whether the former matrimonial home should be sold. As I said, there are a number of issues that I am told there's a reasonable prospect of the parties being able to knock together some agreement, for example, access to the home by the wife for her own personal items and also to create an inventory of the property; valuation of a property in the United Kingdom; valuation of the husband's superannuation interests.  In relation to the ongoing injunctions, the husband would want two conditions to be added: one formally allowing him to continue to draw on a facility secured on a property in Cambridge in the UK for the purposes of fees paid to lawyers in relation to contemplated proceedings in relation to a former partner in the United Kingdom and, secondly, this would be a matter for the wife to agree to or not, to draw $30,000 to pay to the wife.

4. Spousal maintenance is a right between parties who have been married. Where one party can show they are not able to support themselves adequately from their own resources, the other can be called on to provide support to the extent of that person's capacity.  The first issue is the wife's capacity for paid employment.  There is an onus to be discharged in relation to that. In my view the wife discharges that onus. It is the husband's case that the wife has advice from the Department of Education that she could obtain casual teaching today.  There is a formality of two one‑week courses to undergo in relation to adolescent health that would qualify her for access to a permanent position.  She says nothing in her affidavit about any request she has made to any school for casual employment or that she has enrolled herself in the two courses. It is the husband's case that the parties deliberately drew attention to this issue by their agreement in July, identifying the days when the children were with the husband as days when the wife may well be able to obtain employment.

5. There is significant case law about this. There is a line of cases from the Canadian case of Moge. It highlighted the realities of the modern world and the feminisation of poverty sourced in the fact that at least until recent times in our community the expectation and the arrangement has usually been, that mothers bear the interruption to career for the purposes of the tender years of children. There are exceptions to that, but often, as in this case the most valuable asset of the parties, or one of the most valuable assets, is the earning capacity of the husband. That capacity is often traced to the benefits of an unbroken history of paid employment with all of the things that that brings ‑ promotion, the incidence of superannuation, the benefits of leave, the ability to acquire skills which in turn generate capacity for better employment. 

6. There are also issues beyond the practical issues, about getting back into work.  They are flagged in the wife's case with material about her post‑natal depression. A face‑to‑face job like teaching is a job of work. My job is a delight compared to the task of managing 30 or so children who may not want to learn and in some areas of Sydney, sadly, may well visit harm on each other or on a teacher. We do not live in times of full employment. There are not teaching jobs available for everybody. There is not a teaching job for every 44‑year‑old woman seeking to go back into the workforce.  It is not the case that, from a standing start, you can say, "Well, I'll accept a position on no notice at any local school".  There are ways that these things are done, and they take time.  One would expect one the wife is ready, she will make connection with the local schools within an area that she is comfortable with and she will say, "Hello, this is who I am, and I'm available to provide teaching, particularly on these days, and I'd like first refusal.  I need this much notice so I can get baby sitting lined up and so on".  We are talking about something that takes some time.  It may not be available at all.  There are people, even very experienced teachers, who struggle to obtain casual employment, especially at particular times of year. It is no use talking about this as though being the wife being available will cause her to be given a teaching position.

7. I think the wife makes a case that she needs support for a proper reason.  She has a very young child.  Minds differ about the amount of day care and so on that a 23‑month‑old child should have.  I think parents generally would prefer that younger children have more time with their parents before the need for socialisation takes them into the world of day care and long‑day care and so on.  I think, for the purposes of today, these being interim proceedings, the wife discharges the onus. Going forward one would want to see some evidence of the sort of inquiries that I have referred to.

8. There is nothing about the particular claims for support that she makes that are out of the ordinary. Large spousal maintenance awards are made and it is possible to spend quite a deal of money on various things.  There is some glimpse of the standard of living of the parties in histories provided by them.  Through study and other things the parties have had a lot of travel. That has no doubt involved significant expense.

9. It is a demeaning process to go through particular claims in relation to household supplies and repairs. For the purposes of today, I accept that the wife's claim is a proper one.

10. The problem comes in the husband’s capacity. The husband has an income of $2490 a week, and he gets $370 a week in rent from a tenant. He spends $4433 a week, including $1674 in mortgage payments, $205 in superannuation, mortgage payments for the English property, $718 a week. He is short $2000 a week. Even if he stopped paying the mortgage on the former matrimonial home altogether, there would be no capacity to pay spousal maintenance. Now, it might be that there is something in his expenses that one could pare away.  Perhaps not.  According to his Financial Statement he spends nothing on food, nothing on household supplies, nothing on house repairs, nothing on gas, nothing on electricity, nothing on telephone, nothing on motor vehicle.  He is living a fairly frugal life. That is probably not true. Nevertheless, there is no money from which maintenance can be paid.

11. There is an application for the sale of the former matrimonial home.  I think that would be a sensible course.  I cannot imagine, and I was not told in any convincing way, that there was a scenario that would have the husband retaining that property. He would have to service $884,000 worth of borrowings. He thinks the dividend out of his litigation in England is 100,000 pounds, say A$250,000.  He thinks that his equity in the property in England is $200,000. There is $450,000 at best. There is hardly any equity in the subject property, and the husband has superannuation.  It does not sound to me as though it can be done.  There has to be a property settlement between the husband and the wife.  On the face of it, you would think with a long marriage, there would be an imbalance in her favour. If the husband has told us everything that he knows, it is hard to imagine a viable proposition, whereby it would be sensible for him to live in that particular property.  He has talked about accessing his superannuation, but that is part of the assets of the marriage ‑ and if accessed then he may have no income to service a mortgage, unless he has some other plan about future paid employment.  If this was close to a feasible proposal, then you might put the blind eye to the telescope and not order the sale of the property but require him to make the payment of maintenance. He could just work it out himself and that would lead him inexorably to the sale of the property.

12. The other imponderable is the impact of what we are told is a failing property market in New South Wales and Australia. It could be that if there is equity in the property now, there will be no equity in a year's time.  That is another issue to consider.  The other point is that even if the home is sold there will be the cost of a proper rental and costs in setting up premises. It is not the case that ceasing to pay the mortgage will save $1600 a week worth of expenses and there will be no expense to replace it.

13. For the purposes of today, I am satisfied that the wife has a need.  I am not satisfied there is a capacity to pay save that the husband proposes that he borrows some money on a property that is in his name and pay the wife $30,000.  The husband proposes that the characterisation of that as property, as spousal support or whatever be a matter for the trial judge. On the basis that I have found that there is a need and no capacity but for this recourse to capital, there is some strength to the view that a proper characterisation of the payment would be spousal support. On the other hand we do not know what will happen.  It might be the $30,000 comes to Australia and the parties win lotto. Then the $30,000 does not represent 30 weeks at $1000.  It might be that things change, but, in my view, the proper characterisation is spousal maintenance.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan.

Associate:

Date:  24 September 2008