ZENG & YEOW
[2019] FCCA 3371
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZENG & YEOW | [2019] FCCA 3371 |
| Catchwords: FAMILY LAW – Interim property – where imminent final hearing of substantive property matter – where asset pool in dispute. |
| Legislation: Family Law Act 1975 (Cth), ss.72, 74, 75 |
| Cases cited: In the Marriage of Redman (1987) 11 Fam LR 411 |
| Applicant: | MS ZENG |
| Respondent: | MR YEOW |
| File Number: | SYC 1131 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 18 September 2019 |
| Date of Last Submission: | 18 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Feng of Lawside Lawyers |
| Solicitors for the Respondent: | Mr Wang of Apex Lawyers |
ORDERS
PENDING FURTHER ORDERS, THE COURT ORDERS:
That the Husband pay to the Wife the sum of $500.00 per week as spousal maintenance, the first such payment being payable by the husband on 27 November 2019 into a bank account nominated for that purpose by the wife to the husband in writing, and thereafter payable weekly on Wednesday in that manner.
That all interim applications of the parties are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Zeng & Yeow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1131 of 2019
| MS ZENG |
Applicant
And
| MR YEOW |
Respondent
REASONS FOR JUDGMENT
Introduction
On 18 September 2019 I conducted an interim Hearing in the proceedings current between Ms Zeng as Applicant Wife (“the Wife”) and Mr Yeow as Respondent Husband (“the Husband”). The issue was the Application by the Wife for orders that the Husband support her by paying spousal maintenance on both a periodic and a lump-sum basis. The Wife’s Application for the lump-sum order, though characterised by her as spousal maintenance, could also be characterised as an interim property distribution.
The proceedings were also listed on that day for an interim Hearing on parenting issues, but the parties reached an interim agreement and I made interim parenting orders by consent.
Both parties are 36 years of age. They commenced cohabitation in March or April 2008, married on … 2009 and separated on 1 February 2018. They have 2 children, a son [X] aged 9 years and a daughter [Y] aged 6 years. Both children have lived with the Wife since separation and have spent limited daytime only time with their Father.
Pursuant to the interim parenting orders, the children continue to live with their Mother and spend time with their Father each Thursday from 9:00AM until 7:00PM and each Friday from 3:00PM until Saturday at 6:00PM. The parents have equal shared parental responsibility for the children.
Deciding this matter has had its difficulties mainly caused by the lack of relevant evidence on the issue of spousal maintenance provided by the Husband.
Material relied upon by the parties
The Wife relied upon the following documents:
a)Case Outline document;
b)Initiating Application filed 18 March 2019;
c)Affidavit of the Wife affirmed 14 March 2019 and filed 18 March 2019;
d)Affidavit of the Wife affirmed 4 September 2019 and e-filed 5 September 2019; and
e)Financial Statement of the Wife sworn or affirmed 4 September 2019 and e-filed 6 September 2019.
The Husband relied on the following documents:
a)Response (actually an Amended Response) e-filed 25 July 2019;
b)Affidavit of the Husband affirmed 8 May 2019 and e-filed 8 may 2019;
c)Affidavit of the Husband affirmed 18 September 2019 and e-filed 18 September 2019; and
d)Amended Financial Statement of the husband sworn or affirmed 15 July 2019 and e-filed 25 July 2019.
No other documents were tendered by either party.
Background
The evidence of the parties relevant to the issues of spousal maintenance payable by the Husband to the Wife and partial property distribution to the Wife is summarised as follows, with any contested evidence indicated.
Cohabitation commenced on 31 March 2008 according to paragraph 25 of the Wife’s Initiating Application,[1] in “early 2008” according to paragraph 6 of the Wife’s affidavit of 18 March 2019,[2] or in April 2008 according to paragraphs 12 to 14 of the Husband’s affidavit affirmed 8 May 2019.[3]
[1] “Date parties commenced to live together – 31 / 03 / 2008”; Wife’s Initiating Application filed 18 March 2019, [25].
[2] “In early 2008 the husband and I started living together on a de facto relationship …”; Wife’s affidavit filed 18 March 2019, [6].
[3] “In April 2008 … Then she started to live in my home …”; Husband’s affidavit filed 8 May 2019, [12]-[14].
The Wife was in paid employment. The Husband asserts that he was in paid employment, but the Wife asserts that the Husband was unemployed at the commencement of cohabitation.
The Wife asserted that at the commencement of cohabitation she was the registered owner of a two-bedroom unit at Town A in B Province in China (“the Chinese property”), though her further evidence contradicts this in that the property was purchased on 7 July 2009, more than a year after cohabitation commenced.
The Wife’s evidence indicates that the Wife’s Mother contributed about 25% of the purchase price from her savings and that the balance of the purchase price was borrowed by the Wife from C Bank, which took a mortgage over the property, and that all repayments toward the loan account secured by that mortgage have been made by her Mother without any contribution by the Wife.
As I understand the Wife’s evidence in relation to the Chinese property, she regards it as hers in legal title only, and wholly beneficially owned by her Mother. This matter gains importance when considering any order for partial property distribution to the Wife.
The Wife asserts that she had savings of about $4,000.
The Husband asserts that at the commencement of cohabitation he had savings of about $5,000.
The parties moved from China to Sydney in May 2010 and lived at Suburb D in rented premises with the Husband’s Mother, stepfather and maternal grandparents.
The Husband was working for a Mr E in that person’s maintenance business. The Wife asserts that she also worked for Mr E in that business both before and after the birth of the parties’ son, [X], in August 2010, though the Husband denies that the Wife worked in paid employment at all during their cohabitation and marriage.
In February 2011 a company, F Pty Ltd, was incorporated by the parties. The Wife’s Mother provided $30,000 towards the capital needed to establish a business conducted by the company in maintenance. The Husband asserts that a further $20,000 was provided by his Mother. The Wife is silent in relation to this assertion.
In April 2014 the parties purchased vacant land at Suburb G near Town H (‘the Suburb G property’) and had a house built on the property. Following the parties’ separation, proceedings were commenced in Court I by the Husband’s Mother against the parties seeking a declaration that the parties held 13% of the Suburb G property on trust for her and seeking that title be adjusted accordingly in consequence of her assertion that she had contributed $70,055.36 towards the purchase price.
The Husband filed a submitting appearance in the proceedings. On 1 November 2018 consent orders were made in Court I for a sale of the Suburb G property and for the net proceeds of sale after discharge of the loan account and other proper costs on sale to be held in the trust account of Legal Service J.
The Suburb G property was sold in May 2019 for $575,000 and settled on … 2019. The Court I proceedings were settled on the basis that the Husband’s Mother be paid a sum of $40,000 from the proceeds of sale of the Suburb G property. The net proceeds of sale were deposited to the trust account of Legal Service J was $101,883.31 from which the sum of $40,000 was paid to the Husband’s Mother leaving a balance remaining to the present time, with some added interest, of $61,864.81. It is this sum that the Wife seeks be released to her by way of lump-sum spousal maintenance.
The Wife lives in rented premises with the children. The Husband lives in rented premises shared with his Mother and Stepfather and two unrelated persons who are sisters.
The Husband asserts that the only property he owns is a 2004 model motor vehicle valued at $2,000, his interest in the private corporation F Pty Ltd (in relation to which he asserts in his Financial Statement he is the sole beneficial owner and accordingly I assume he is asserting that he is the sole shareholder) valued at $100, and household contents valued at $500. He has superannuation with a value of $13,830.85.
The Husband asserts that he owes $38,000 on a credit card and has personal business liabilities of $42,134 for “Stock in trade”.[4]
[4] Husband’s Amended Financial Statement filed 25 July 2019, [54].
The Husband deposes in his Financial Statement that he is self-employed as a pool servicer through F Pty Ltd and that his weekly income from his wager or salary is $750. Oddly, he also asserts in his Financial Statement at paragraph 11 that he receives $36,882 per week by way of income from the pool service business conducted by F Pty Ltd and I will address this assertion later in these reasons.
In her Financial Statement, the Wife asserts that though she is the registered owner of the Chinese property valued at $360,000, that:
deposit money and mortgage payment were made by the Wife’s Mother. The Wife made no financial or non-financial contribution to the [Chinese] property. The [Wife] says the property is her Mother’s residential home.[5]
[5] Wife’s Financial Statement filed 18 March 2019, part O.
She deposes to savings of $1,153 and ownership of a 2008 motor vehicle valued at $5,000 and house contents valued at $7,000. She has no superannuation.
The Wife deposes to owing $139,900 to relatives and $10,000 to her solicitors for legal fees.
The Wife currently works two days per week for Company K as a maintenance person and is paid $285 per week gross. Wife also receives Centrelink payments of $325 per week for Parenting Payment and $322 per week for Family Tax Benefit.
The law
The issue in these proceedings is whether or not the Husband should pay spousal maintenance to the Wife and, if so, in what amount and for what period of time, all on an interim basis. In relation to the order for lump-sum spousal maintenance in the sum of $61, 864.81 by way of release of the remaining net proceeds of sale of the Suburb G property, I should also consider whether or not that order should be made, if at all, as a partial property distribution order in favour of the Wife.
The Husband is liable to maintain the Wife, to the extent that the Husband is reasonably able to do so, if, and only if, the Wife is unable to support herself adequately by reason of having the care and control of the two children, by reason of any physical or mental incapacity for appropriate gainful employment or for any other adequate reason, having regard to, and only to, any relevant matters referred to in subsection 75(2) of the Family Law Act 1975 (‘the Act’).[6]
[6] Family Law Act 1975 (Cth) s 72.
The Court’s powers in spousal maintenance proceedings are set out in section 74 of the Act. The court may make such order as it considers proper for the provision of maintenance in accordance with that Part VIII of the Act.[7] In making that order the court must take into account only the matters referred to in section 75(2) of the Act.[8]
[7] Family Law Act 1975 (Cth) s 74(1).Family Law Act 1975 (Cth) s 72.
[8] Family Law Act 1975 (Cth) s 75(1). See also See also Hall & Hall (2016) 257 CLR 490, [3]-[10], [52]-[58].
In In the Marriage of Redman,[9] the Full Court said 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”: In the Marriage of Williamson (1978) 4 Fam LR 355 at 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 s 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 s 83.[10]
[9] In the Marriage of Redman (1987) 11 Fam LR 411.
[10] In the Marriage of Redman (1987) 11 Fam LR 411, 415.
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.[11]
[11] See In the Marriage ofBevan (1993) 120 FLR 283.
In Maroney & Maroney,[12] Coleman J said at paragraph [56]:
[56] … The “capacity” to meet an order for interim spousal maintenance is not confined to income. Once a party, such as the Wife in this case, establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.[13]
[12] Maroney & Maroney [2009] FamCAFC 45 (Coleman J).
[13] Maroney & Maroney [2009] FamCAFC 45, [56] (Coleman J).
In In the Marriage of Bevan,[14] the Full Court of the Family Court of Australia summarised the pathway to an order for spousal maintenance as follows:
[14] In the Marriage ofBevan (1993) 120 FLR 283.
1. A threshold finding under section 72;
2. Consideration of sections 74 and 75(2);
3. No fettering principle that pre-separation standard of living must automatically be awarded where the Respondent’s means permit; and
4. Discretion exercised in accordance with the provisions of section 74, with “reasonableness in the circumstances” as the guiding principle.[15]
[15] In the Marriage ofBevan (1993) 120 FLR 283, 290
In relation to any order made on the basis of a partial property distribution to the Wife, I am guided by the Full Court’s decision in Strahan & Strahan.[16]
[132] In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final Hearing.[17]
[16] Strahan & Strahan (Interim Property Orders) (2009) 241 FLR 1 (Boland, Thackray, and O’Ryan JJ)
[17] Strahan & Strahan (Interim Property Orders) (2009) 241 FLR 1, [132] (Boland, Thackray, and O’Ryan JJ).
Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
Secondly, the Court is to have regard to relevant matters in section 79 of the Act. It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final Hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.
A detailed inquiry is not required, but there must be some assessment of section 79 factors.
In Strahan the Full Court went on to say:
[137] Once a court proceeds to exercise the power in s 79 of the Act , being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that ... the applicant ... will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti [unreported, Family Court, Nygh J, 2 March 1990] per Nygh J and Wenz v Archer [(2008) 40 Fam LR 212]. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
[138] The legislation does not prescribe what the Full Court in Zschokke at 392 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage. Senior counsel for the Wife submitted that it may be relevant at the substantive or second phase in reviewing the “necessarily limited and impressionistic budget for costs” to ensure that the application is bona fide. We are of the view that it may be that any issue about the bona fides of an application is relevant at the procedural phase in the context of considering if in the interests of justice it is appropriate to make an order before the final Hearing.
[139] We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final Hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
[140] As to the other matters being a position of relative financial strength on the part of the respondent to an application and the capacity of the respondent to meet his or her own litigation costs, there is no doubt that the financial circumstances of both parties are relevant at the substantive stage and may also be relevant at the procedural stage. Senior counsel for the Wife submitted that all of the matters discussed by the Full Court in Zschokke are self-evident and we accept that this is so in relation to at least two of the matters being the need for funds and the financial circumstances of both parties.
[141] As to the various matters discussed by Brereton J in Paris King Investments [v Rayhill [2006] NSWSC 578] which we have discussed above, we do not propose to deal with all of what his Honour said, however we make the following observations about some of the matters. Obviously the applicant should have “at least an arguable case for substantive relief which deserves to be heard”. Further, in determining at the procedural stage whether to exercise the jurisdiction there may need to be evidence of the applicant’s “likely costs of the litigation” given that the need for funds to defray litigation costs and expenses is the circumstance propounded as to why it is appropriate that an order be made. We also accept that “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.[18]
[18] Strahan & Strahan (Interim Property Orders) (2009) 241 FLR 1, [137]-[141] (Boland, Thackray, and O’Ryan JJ).
Is the wife able to support herself adequately?
In considering, for the purpose of making a finding, if the Wife is unable to support herself adequately for any adequate reason I must have regard only to the matters referred to in section 75(2).
The Wife is 36 years of age. As annexure ‘A’ to her affidavit affirmed 4 September 2019 the Wife attaches a “Clinical summary” relating to herself prepared 12 August 2019 by Ms L, a registered psychologist. No objection was taken to the annexure at the interim Hearing by the Husband and though it is a hearsay document, that fact does not prevent its admission into evidence in interlocutory proceedings.
The documented states that the Wife was referred to Ms L for psychological treatment by medical practitioners under a mental health plan for issues in relation to anxiety and depression. However, the document does not address any connection between the Wife’s mental health difficulties and her capacity for engaging in gainful employment. There is no evidence of any other health difficulties relating to the Wife.
The Wife had no employment income from the time of the parties’ separation until January 2019, at which time she gained employment as a maintenance person for Company K. She currently earns $285 gross per week from that employment. The Wife also receives $648 per week by way of Centrelink payments of Parenting Payment and Family Tax Benefit. Pursuant to section 75(3) I must disregard her entitlement to the Centrelink payments when exercising jurisdiction under section 74 to make any order I consider proper for provision for her maintenance.[19] No evidence was presented at the interim Hearing by the Husband to contradict the Wife’s assertions in relation to her income. Accordingly, I find that the Wife’s income for the purposes of the spousal maintenance proceedings is $285 per week.
[19] Family Law Act 1975 (Cth) s 75(3):
In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
As stated earlier in these Reasons, the Wife’s only property apart from her interest in the sum of $61,864.91 standing to the joint credit of the parties in the trust account of Legal Service J consists of the Chinese property with a value of $360,000, her savings of $1,153, a motor vehicle valued at $5,000, and her household contents valued at $7,000. I have already made comment in relation to what I understand to be the Wife’s position in relation to the beneficial ownership of the Chinese property.
The Wife has no superannuation.
The Wife has debts to relatives of $139,900 and a debt of legal fees, as at 4 September 2019 (prior to the interim Hearing) of $10,000.
I find that the Wife does not have any property apart from her savings of $1,153 that she can apply towards her support and towards her obligation to provide financial support for the children of the marriage.
The Wife has care of the children of the marriage other than when they are spending time with their Father, which time is each Thursday from 9:00AM until 7:00PM and each weekend from 3:00PM on Friday until 6:00PM on Saturday. Accordingly, the Wife is principally responsible for the care of the children. The children are nine years of age and six years of age. They are both at primary school.
The Wife has been receiving sums of money by way of loans from her relatives, principally her Mother and her Father, and applying those sums towards her living expenses and her legal fees.
The Wife does not provide any evidence going specifically to her physical and mental capacity for appropriate gainful employment, but given that she has principal care of the children for all but, effectively, two days and one night each week, her responsibility for the children is a limit on her availability to engage in appropriate gainful employment.
The Wife sets out in Part G and Part N of her Financial Statement detail of her fixed weekly personal expenses and her average weekly expenses, being a total sum of $1,938.50. No evidence was led on behalf of the Husband on interim Hearing, nor any submissions made on his behalf, that throws any doubt on those expenses asserted by the Wife. I have carefully considered all of the expenses asserted by the Wife and I find that all of those expenses are reasonably necessary and unavoidable living expenses for the Wife and, in relation to some, for the children.
In the Wife’s Financial Statement, she asserts that she does not receive any payments from the Husband towards the financial support of the children by way of child support or otherwise.[20] In the Financial Statement of the Husband, he asserts at paragraph 31 that he pays a sum of $10 per week by way of assessed child support for the children. Accordingly, I find that virtually the whole of the burden of the financial support of the children is met by the Wife.
[20] Wife’s Financial Statement filed 6 September 2019, [13].
The Wife is not responsible for the support of any person other than herself and the children.
The Wife is eligible for and receives a pension or allowance and benefits by way of Parenting Payment and Family Tax Benefits, but these are not taken into account as income available to the Wife when considering any order that may be proper for the provision of spouse maintenance under section 74.[21]
[21] Family Law Act 1975 (Cth) s 75(3):
In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
On the evidence available on the interim Hearing, I am not able to make any finding in relation to the standard of living that is in all the circumstances reasonable for the Wife.
I do not have any evidence that would enable me to make any finding in relation to the extent to which any payment of maintenance by the Husband to the Wife would increase the Wife’s earning capacity by enabling her to undertake a course of education or training or to establish herself in a business or otherwise to obtain an adequate income.
The Wife asserts that she owes a combined total of $139,900 to various relatives, principally her parents, in relation to moneys lent to her following separation. I find that any order that may be made for payment of periodic spousal maintenance by the Husband to the Wife to assist her with her support would not be such as to enable the Wife to make repayments to those creditors. In the event that I found that it was proper to make an order for lump-sum spousal maintenance for the support of the Wife by release of the monies held upon trust for the parties from the sale of the Suburb G property it may provide her with some capacity to make partial repayment to those creditors.
There is no direct evidence on which I can make any finding in relation to the extent to which the Wife has contributed to the income, earning capacity, and property and financial resources of the Husband, other than that there is a strong inference to be taken from the evidence of the Wife that she was involved in the pool servicing business with the Husband and so contributed to the viability and income of that business. Her current employment as a maintenance person and her evidence of working in the family business lead me to that inference. The business provides the source of the Husband’s current income.
The Wife continues to perform the principal role as the day-to-day carer parent for the children, and given their age they are still in need of her supervision before and after school unless they are enrolled in before and after school care, in relation to which I have no evidence from either party. This is one part of the limit that her role as principal carer for the children places on the Wife’s ability to engage in appropriate gainful employment so as to increase her earning capacity and income beyond the current level. It is one of the considerations in my finding that the Wife is engaged in appropriate gainful employment to a level reasonable in the circumstances.
I find that on the basis of the relevant matters under section 75(2) considered above, the Wife is not able to support herself adequately. I find that the Wife’s income so far as it is properly considered for the present purpose is $285 a week and that her reasonably necessary and unavoidable living expenses are $1,938.50 per week, being an income shortfall of $1,653.50.
Is the husband reasonably able to maintain the wife?
The Husband’s financial circumstances, because of the lack of evidence presented by him on interim Hearing, are a bit of a mystery.
The Husband relied on his amended Financial Statement sworn 15 July 2019 and filed 25 July 2019. He asserts that his salary or wage from his “self-employment” by his corporation, F Pty Ltd, is $750 per week. He asserts in paragraph 11 of Part D that he has income from F Pty Ltd of $36,882 per week. This is clearly nonsense and I sought clarification from his solicitor during the interim Hearing.
I was told that the $750 per week is his average earnings from conducting the business of the company and that the $36,882 was “from the latest tax return figures”. Taken literally, I could find that the Husband’s weekly income is $37,632. That would be absurd on the basis of all of the other evidence of both parties in the matter.
In his Financial Statement at Part G in relation to weekly personal expenditure the Husband asserts that he pays income tax of $14.90 per week, motor vehicle registration costs of $50 per week and child support payments of $10 per week. He totals that expenditure to $60, though clearly it totals $74.90. Part N of his Financial Statement is blank despite the instruction on the form “Complete and attach this page only if the application is for orders for maintenance for yourself, the other party or your children or child support or financial enforcement.”[22]
[22] Husband’s Financial Statement filed 25 July 2019, part N.
Other than the three amounts referred to in Part G, I have no evidence as to the Husband’s weekly expenses. If I disregard the absurdity in relation to the $36,882 per week and take his income to be $750 per week then on the basis of his sworn evidence he has $675.10 excess income over expenses each week.
In paragraph 40 of her affidavit affirmed 4 September 2019 the Wife says “Following [Mr Yeow] left home [sic] on 1 February 2018, the children and my living expenses were supported by my parents by lending money to me without interest.”[23] [Mr Yeow] is the name used by the Wife for the Husband.
[23] Wife’s affidavit affirmed 4 September 2019, [40].
In her affidavit affirmed 14 March 2019 in paragraph 51 the Wife says “Following the Husband abandoned [sic] the children and me on 1 February 2018, I have cared and provided for our children entirely. …. The Husband only pays $36 dollars per month child support for our children.”[24]
[24] Wife’s affidavit affirmed 14 March 2019, [51].
Accordingly, I must find that the Husband’s income is, taking the sensible approach despite his sworn evidence, $750 per week and that his reasonably necessary and unavoidable living expenses are $74.90 per week giving him an excess of income over expenses of $675.10.
Other than some evidence from the Husband in paragraph 79 of his affidavit affirmed 8 May 2019 that in April 2018 he was suffering from “finger muscle stiffness and my fingers were hard to bend”,[25] which he had treated during a trip back to China, I have no evidence of any health issues that affect the Husband’s ability to engage in appropriate gainful employment.
[25] Husband in paragraph 79 of his affidavit affirmed 8 May 2019
The Husband has care and control of the children pursuant to the interim orders each Thursday from 9:00AM until 7:00PM and each weekend from 3:00PM on Friday until 6:00PM on Saturday, and not otherwise. I do not have any evidence of the arrangements made for the care of the children on Thursdays other than to note that both children are at school age and attending primary school, leaving the Husband freed to work in the maintenance business during school hours on Thursdays during school term time.
I have no evidence that the Husband is responsible for the support of any person other than himself and the children. I have conflicting evidence between the parties as to whether or not he pays the sum of $10 per week by way of assessed child support to the children.
There is no evidence that the Husband is cohabiting with any other person, only that he shares the rental premises he occupies as his home with his Mother, his Stepfather and two other persons who are sisters.
I do not have sufficient evidence to enable me to make any finding in relation to the standard of living that is in all the circumstances reasonable for the Husband.
Is it proper to make an order for spousal maintenance?
On the basis of the findings I have made, the Wife has established that she is unable to support herself adequately, by reason of having the care and control of the children the marriage and that her current shortfall in income is $1,653.50.
On the basis of the totality of the evidence, and in that regard I refer particularly to my comments earlier in these reasons in relation to the evidence of the Husband as to income and expenses, the Wife also establishes that the Husband is reasonably able to contribute to the support of the Wife, to the extent of his excess of income over expenses as established on his own sworn evidence, being $675.10 per week.
Accordingly, and leaving a margin to the Husband for what common sense, despite his sworn evidence, tells me must be needed for some of the necessities of life each week, I will make an order that the Husband pay to the Wife the sum of $500 per week by way of periodic spousal maintenance.
In relation to the Wife’s Application that an order be made by way of a lump-sum spousal maintenance that she have paid out to her the sum of $61,864.81 being the balance remaining from the proceeds of sale of the Suburb G property, I find that it is not proper to make such an order for the provision of maintenance for the Wife.
I make this finding on the basis that if the Chinese property is left out of the matrimonial asset pool, as I understand the Wife’s position to be on her evidence, I calculate the gross matrimonial asset pool as being $90,295 and the total liabilities of the parties to be $143,700, not including any legal fees or the Husband’s asserted liability for “Stock in trade”.[26] The sum of $61,864.91 is two thirds of the gross matrimonial asset pool, and with the final Hearing of the property settlement proceedings listed for 5 February 2020, I consider that it is more appropriate to leave that sum intact for the property settlement orders.
[26] Husband’s Financial Statement filed 25 July 2019, [54].
Should an order be made for partial property distribution to the wife?
I can deal with the issue of a partial property distribution to the Wife, as opposed to an order for lump-sum spouse maintenance, quite shortly.
On the Wife’s own case as I understand it in relation to the Chinese property, the said sum of $61,864.91 represents 68.5% of the gross matrimonial assets of $90,295 (based upon the parties respective Financial Statements), which when added to the assets already in the Wife’s possession would give her 82% of the gross matrimonial assets. I cannot be satisfied on the current evidence that a partial property distribution to the Wife of $61,864.91 would fit comfortably within the share of the matrimonial assets the Wife could receive on finalisation of the property settlement issues under section 79 of the Act.
Further in this regard, I note that at the end of the interim Hearing I made orders listing the principal proceedings for a final Hearing on 5 February 2020 and I do not regarded it as proper in all the circumstances of this matter to make an order for partial property distribution that close to the final Hearing of the property issues.
Accordingly, I make the orders as set out at the start of these Reasons.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 26 November 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Procedural Fairness
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