Spousal maintenance sought 4 years later

Spousal maintenance sought 4 years later

Hackford & Hackford

Spousal maintenance – what are the wife’s reasonable needs? And to what extent can she support herself?

49. In determining the threshold issue in Section 72 of the Family Law Act 1975 (Cth) the Court is to have regard to the matters set out in 75(2).

75(2) matters

50. The parties are in their 40’s and so far as I am aware are in a good state of health.
51. Neither of the parties raises physical or mental incapacity in relation to an ability for appropriate gainful employment. Each has demonstrated that they are physically and mentally capable of earning an income. However, the wife raises the allegation that the husband has inhibited her capacity to earn an income through his alleged campaign of misinformation on the internet. Although it is not clear, I assume that this is a fact or circumstance which the wife contends the justice of the case requires to be taken into account under s75(2)(o).
52. The statements on the internet and social media sites upon which the wife relies, annexed to her affidavit are very difficult to read as they are poor reproductions. However, it is clear that one entry purports to have been made by the husband’s sister on 22 September 2014 and another purports to have been made by the husband on the same date. The other documents are either illegible or appear to be comments made by third parties whose connection with the parties is unknown. In my view, even on the wife’s case, these internet statements taken at their highest could not have had an impact upon the wife’s reputation as she contends. According to her, she was appointed as a business development manager of a company in Singapore with a monthly salary of $20,000 per month at around the same time that these statements were made.
53. Having attached no weight to these documents relied on by the wife, there is no evidence upon which I could be satisfied that any actions of the husband have had any detrimental impact on the wife’s capacity to earn an income.
54. According to the wife’s affidavit, she has had an impressive history and demonstrated capacity to earn a significant income both in Australia prior to separation and in Singapore following separation. As the husband’s contribution to the support of the wife and children following separation had been limited to child support until July 2015 I draw the inference that the wife capably supported herself and the children for over three years. For the reasons given, I am not satisfied that the husband’s conduct has impeded the wife’s capacity to earn an income and there is no reason why her capacity is in any other way limited. On the basis of the wife’s previous pattern of employment I am satisfied that she has the capacity to earn a reasonable income.
55. So far as the wife’s current income is concerned, in her Financial Statement sworn 27 September 2016, the wife says that she earns approximately $500 a week in total salary or wages before tax. The wife does not state any details of her employer but states that she is employed by “various casual employers”. However, an interim superannuation statement dated August 2016 attached to her Financial Statement indicates that her superannuation fund has received monthly employer contributions from a particular employer regularly since November 2015. It is not clear why the details of this employer or any others are omitted in the wife’s Financial Statement. Further, the wife has not filed any other documents such as wages slips to support her claim as to her income. For these Reasons, I have reservations about whether the wife has accurately stated her current income.
56. The financial resources available to the wife is also a matter in dispute. According to her affidavit and Financial Statement she receives $400 per week from her partner. The wife says that he earns $1000 per week but also fails to declare any information to verify his income. There is also in my view some weight to be attached to the husband’s contention that the wife may have other available financial resources that are not disclosed. The issue of any financial entitlements arising from the wife’s franchise agreement for the business in New Zealand and her capacity to enforce a judgment in her favour from Singapore are two of the matters in dispute. The wife has also obviously had some capacity to pay legal fees which would suggest that she has other financial resources available to her.
57. The wife has the care and control of the three children who are 16, 11 and eight years of age. The husband has been paying child support in Australia though this has been a matter of dispute between the parties which has resulted in an objection being successfully lodged by the husband. Subsequent to the date of the objection decision, the wife has requested that the CSA end the child support payments for the children. There is no evidence of other commitments of the parties that are necessary to enable the party to support him or herself or their children or of responsibilities of either party to support any other person.
58. The wife receives $240 by way of “family benefit” and also $263 which is described as an “NEIS Full time student payment”. The wife does not address the issue of her being a “full time student” in her affidavit and the basis upon which this payment is made is unknown.
59. The issue of a reasonable standard of living, being one of the matters that the court is to take into account in relation to spousal maintenance appears to be another matter of significance to the wife in this application. As I understand it, a reasonable standard of living goes to the heart of the applicant wife’s reasonable needs.
60. This is a very unusual application. It is being determined four years after the parties separated and throughout that period of separation the wife has demonstrated a capacity to support herself and meet her reasonable needs without any contribution by the husband. While it is not entirely clear, it appears that the wife contends that she did not need the husband’s support when she was living in Singapore following separation but has needed it since arriving in Australia in May 2015.
61. The wife appears to attach significant weight in this application to the fact that the husband consented to orders that he pay the rent for premises for herself and the children in Sydney and $400 per week in spousal maintenance in July 2015.
62. In my view, no inference can be drawn from the husband’s consent to these orders in July 2015 which is relevant to the issue of the wife’s capacity to support herself and her reasonable needs. It is to be remembered that at the time the husband consented to these orders, there had been protracted parenting proceedings in Singapore which resulted in orders that he have sole custody of the children for six months from May 2015 and that he be permitted to return to Australia with the children. It is unknown why the Australian Federal Police intervened in the parenting arrangement upon the arrival of the husband and children in Australia in May 2015 and the wife then unilaterally and covertly relocated to Western Australia. The husband was at this time attempting to encourage the wife to return to Sydney with the children. In these circumstances it was in my view, totally reasonable that the husband consented to orders to provide financial assistance for the family to live in Sydney.
63. It cannot however in my view, be incumbent on the husband to continue to support the wife if she cannot demonstrate that she is not reasonably able to support herself simply because he previously consented to orders for spousal maintenance in particular circumstances.
64. I accept the wife’s contention that her current expenses set out in her Financial Statement and affidavit are modest. However, on her own evidence the wife’s partner pays the household rent in full and her own expenses are only $155 per week. Her expenses are well able to be covered by the average weekly income of $1000 that she declares, and the additional $100 contributed by her partner.
65. It is difficult to understand why, when the wife asserts that the children’s weekly expenses are $644 she is no longer seeking child support from the husband. However, although the children’s expenses are not to be taken into account in a claim for spousal maintenance, even the total expenses for herself and the children of $799 each week can be paid for from the wife’s weekly income, as her partner’s contribution completely covers his own expenses and all of the rent.
66. The wife seems to suggest in her affidavit that the family’s current accommodation is substandard. She describes it as “far inferior” to the accommodation in which the family had previously been living when the husband was paying the rent or to other accommodation in which she and the husband had lived throughout the lives of the children, even following separation. As noted previously there is no principle that an applicant for spousal maintenance is entitled to the same standard of living as was enjoyed prior to separation.
67. There is also a dispute between the parties about the cost of rent of premises of a similar standard to those in which the family had previously been living prior to March 2016 when the wife and children moved to publicly subsidised housing.
68. There is however no satisfactory explanation as to why the wife is not earning a considerably greater income in her chosen occupation and could thereby pay rent on higher quality premises. I am of the view that the wife’s current circumstances are not due to an inability to support herself adequately but due to her own choice not to work more hours each week.
69. One of the matters referred to in 75(2) (h) relates to the extent to which the payment of maintenance to the applicant would increase her earning capacity by enabling her to undertake a course of education or training. Although the wife receives a payment which seems to be related to her studies there is no suggestion in this matter that such studies would increase her earning capacity. Rather, the issue of further studies is not addressed at all in the wife’s affidavit and only emerges incidentally through a reference to the payment in her Financial Statement.
70. Although findings of any matters in dispute between the parties including their respective contributions to the matrimonial assets cannot be determined at this stage, there is no dispute that both the wife and husband made significant contributions to the financial resources of both parties.
71. The parties were married for just over seven years prior to final separation.
72. The wife does not assert that there is a need to protect her in continuing to play role as a parent. She has at all times since the children were young been actively employed and earnt a considerable income. The children are now in primary and secondary school and it is not contended that the wife’s role as a parent requires protection.
73. There is very little information concerning the financial circumstances of the wife’s partner.

SUMMARY AND CONCLUSION

74. As previously noted, this is an unusual application for spousal maintenance as the parties finally separated four years ago. Since that date the wife has been able to support herself and the children to an apparently high standard in Singapore. It may even be, though it is unable to be determined on this application, that the wife had a greater earning capacity than the husband during the marriage and following separation.
75. After the father and children returned to Australia and it was intended that the children live with the husband for at least six months in accordance with the Singapore orders, the wife also returned and covertly relocated with the children to Western Australia. When she returned to Sydney in circumstances where the husband sought to re–establish his relationship with his children, the husband agreed to support the wife by spousal maintenance and by paying her rent and some other outgoings. Subsequently the wife also sought Child Support in respect of the children’s expenses, which she now no longer seeks.
76. Although the wife contends that her capacity to earn an income at a similar level to that which she previously earned has been affected by the actions of the husband, I am unable to make a finding to this effect. There is no other reason, in my view, that the wife cannot earn more than she currently earns having regard to her expertise and skills. I also have some concerns that the wife may have access to other income or financial resources as she has made an incomplete disclosure as to these matters. The wife does not give any details about her employers which is clearly available to her to enable verification of her claimed income.
77. While the current circumstances of the wife may not be to a standard that she previously enjoyed, I am not satisfied that the standard of living she enjoys is unreasonable.
78. Accordingly, I am not satisfied that the wife is unable to support herself adequately as required to be established by her as a threshold issue. Accordingly, the husband’s circumstances and capacity to pay does not arise, and the wife’s application for spousal maintenance is therefore dismissed.
79. Although the husband previously consented to an order that he pay spousal maintenance for the wife of $400 per week, I am satisfied that he did so in circumstances where he was seeking to encourage the wife to relocate to Sydney and support her in doing so.
80. I am also satisfied that in agreeing that such an order be made, the husband did not concede that the wife would continue to be incapable of being reasonably able to support herself at all times in the future.
81. Although I have not made a finding as to the husband’s capacity to pay spousal maintenance, in circumstances where he is seeking that the previous order be discharged, the threshold issue of the wife’s ability to support herself must still be considered. For the Reasons given, I am not satisfied that the wife has established that she is unable to reasonably support herself adequately. Accordingly, the order requiring the husband to pay spousal maintenance made in July 2015 is discharged.