Spousal maintenance capacity unclear

Spousal maintenance capacity unclear

Stenner & Stenner (No 2) [2016] FamCA 146 (9 March 2016)

Spousal maintenance – The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/146.html

1. This is an adjourned application for consideration of the Application in a Case filed by the wife on 20 November 2015 in which she seeks orders that (1) the husband pay the sum of $150 by way of spousal maintenance “until such time as these property matters are resolved”; (2) that the wife do provide the husband with an itemised account of all work undertaken with copies of receipts for payments made; (3) that the husband pay half the costs associated with ensuring the former matrimonial home is maintained during the period of its sale … and (4) that the husband recommence payments in respect of the mortgage with Citibank over the former matrimonial home.
2. There have been material filed by way of affidavits and several financial statements since that time. The property is on the market for sale and has not been sold.
3. On the issue concerning the payment of the mortgage with Citibank the husband’s evidence is that the mortgage in relation to the former matrimonial home is the subject of a moratorium agreed with the Citibank until July 2015 and that he is negotiating for the moratorium to continue but is not able to give the Court any evidence other than that.
4. In relation to the question of the mortgage the business apparently is continuing to pay the business part of the mortgage and my understanding is that the business will continue to do so pending the sale of the property.
5. In relation therefore to the paragraph 4 of the Application in a Case and on the basis that the property is on the market for sale, the moratorium is until July 2015 and that the husband is continuing to negotiate the continuing moratorium I will not make orders in terms of paragraph 4.
6. The question then turns to the application by the wife for spousal maintenance on an interim basis. There is considerable dispute as to the income of the business and how that money is dealt with. The wife is alleging in her documents and before the Court today that the husband receives cash and keeps that cash or banks it for his own use when the money is actually income from the business and that therefore there is not full disclosure of the income from the business.
7. The husband asserts that the income is as disclosed. I have received the exhibits today, two of which relate to Westpac bank activities of one of the Westpac accounts operated by the husband since the separation and the other is the Stenner Family Trust financial report for the year ended 30 June 2015. Those exhibits also raise issues which cannot be dealt with on a final basis because the evidence has not been tested.
8. Clearly exhibit 1 indicates that there had been significant funds being paid into the Westpac account which exceed the income from the business of $300 per week alleged by the husband in his most recent financial statement to be his only income (other than the family benefits paid by the Government to the father in relation to the children in his care).
9. He asserts in his financial statement filed on 5 February 2016 that he does not receive any salary and that his income from the business J Pty Ltd is estimated to be $300 per week. The Government benefits are $108 a week.
10. There is also an issue in relation to the accuracy of the financial report for the year ended 30 June 2015 which has been received as an exhibit as it has not been signed and it is not necessarily confirmed as reliable information concerning the business which apparently is operated by the family trust showing a loss for the financial year ended 30 June 2015. The alleged salaries and wages disclosed in that are apparently not for the husband but for an employee of the business.
11. The issue therefore that I have to determine on this interim basis is if there is sufficient evidence to establish the need of the wife for spouse maintenance and the capacity for the husband to pay.
12. I obviously take into account all of the factors in section 75 when considering interim spouse maintenance application.
13. As far as the wife’s circumstances are concerned the most recent financial statement filed on 25 February 2016 shows that the only income she currently receives is the Newstart of $270 per week which is an amount which the Court should not take into account when considering the spouse maintenance issues.
14. The evidence of the wife by way of affidavit shows the steps the wife is taking and has taken in relation to finding suitable employment. I am satisfied on the current status of the material before me that the wife has established that she is currently not able to obtain appropriate employment.
15. The question therefore turns as to the need of the wife for support taking into account the disputed items by way of expenses, and the conceded fact that the wife is living in the home without paying the mortgage. I accept, however, that she continues to have a need for spousal maintenance due to the need to provide for her own food and associated telephone, clothing, medical items.
16. I am not accepting as reasonable all of the costs of the wife claimed in part N of her most recent financial statement for the purposes of interim spousal maintenance. It would be subject to proof as to whether the $60 per week for gardening/lawn mowing and $50 per week for cleaning (house/pool) are reasonable expenses but that will be determined in due course.
17. I take into account, however, the overall needs of the wife on a reasonable basis. I am satisfied that she has established appropriately the need for the payment of $150 per week which is the spousal maintenance being sought in the Application in a Case filed on 20 November 2015.
18. The factors then turn to the capacity of the husband to pay taking into account his financial circumstances. The business income indicates that the business is operating at a loss for the year ended 30 June 2015. The husband’s financial statement filed this February 2016 clearly indicates notwithstanding that the business operated at a loss for the financial year ended 30 June 2015 the husband continues to draw on his estimate $300 per week and the business continues to pay for him the car, phone and insurance of $50 per week and rent, petrol and power of $350 per week.
19. The husband claims in the statement of financial circumstances the significant sums in relation to the education expenses for the children. I take into account significantly the husband’s responsibility for the primary care of the two children and the costs that would be associated with that over and above their education costs.
20. The difficultly in these circumstances is the weight that I should give to exhibit 1 which shows significant sums being paid from the business account and the interpretation I should give for those. The difficulty I have with that is that they have not been tested. Some of them significantly relate to business expenses but others are clearly, possibly simply private expenses.
21. It would appear, however, that the accounts are such that the husband has had the capacity to pay in those monies and draw out those monies over a period ranging from November 2015 through to January 2016.
22. However, there is still insufficient information before me at this stage to make a finding on an interim basis that the husband has the capacity to pay the spousal maintenance which the wife seeks.
23. Therefore although I have been satisfied that she has established the appropriate need for the $150 per week I am not satisfied that the contested information currently before me establishes sufficiently on an interim basis that the husband has the capacity to pay the spousal maintenance. Therefore I do not make that order and discharge the interim application.
24. On the question of costs of the application for interim spousal maintenance each party bear their own costs.