Spousal maintenance and high needs child

Tipping & Barrington

Spousal maintenance and high needs child

Spousal Maintenance (interim) and general observations from the Court as to the costs of protracted litigation.

      1. Regarding spousal maintenance, the Full Court in Bevan & Bevan (1995) FLC 92-600 at 81981 held, inter alia, that an award of spousal maintenance requires the Court to make: (1) a threshold finding under s.72; (2) consideration of s.74 and 75(2); (3) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permits; and (4) discretion exercised in accordance with the provisions of s.74 which is reasonable in the circumstances.
      2. The Court has no difficulty at all in finding, on the evidence before it, that the Applicant Wife is unable to support herself by reason of having the care and control of a child of the marriage who has not attained the age of 18 years. The Mother is solely responsible for the care of the parties’ child, X. Her evidence is that when he was three years old he was diagnosed with autism spectrum disorder, global developmental delay and prenatal kidney abnormality and dilation. Moreover, in about October 2014, he was diagnosed with a severely retracted jaw. The medical evidence in relation to X creates a strong impression that he requires very substantial support for his social communication impairment and his repetitive and restrictive behaviours.
      3. X attends a special school, five days per week, between 9.30am and 2.45pm. The Court does not accept the contention advanced on behalf of the Husband that the Wife could, somehow and perhaps miraculously, find work during the hours that X attends his special school. The fact that the Mother has (omitted) qualifications and indeed (omitted) skills from her past employment, does not advance the Respondent Husband’s case one iota in this regard.
      4. The fact is that, in circumstances where she is solely responsible for his care with no financial support from the Husband since October 2015, it is in this Court’s view perfectly appropriate for her to focus her life on attempting to meet X’s special skills, as best she can. The Court finds that the Applicant Wife is unable to support herself adequately by reason of having the care and control of X, in all the circumstances of this case.
      5. Moreover, the Wife’s financial circumstances as evidenced by her financial statement sworn 1 March 2016 plainly demonstrate that she is in need of spousal maintenance. All of her income is derived from Government benefits. Quite apart from the fact that her total personal expenditure was not challenged in cross-examination, the Court, nonetheless, independently concludes that the expenses that she discloses for herself are reasonable, given the amount of spousal maintenance that she seeks. The Wife was, of course, cross-examined about her financial circumstances, but, with all due respect to counsel for the Respondent Husband, the focus of the cross-examination was misplaced.
      6. Much of the cross-examination focused on her financial circumstances immediately before, at, and after the date of the separation. The Applicant Wife may well have disposed of various items of property, and it may well be that there are some grey areas about these transactions, but it seems equally open to the Court, on the available evidence, to conclude that her actions were in proportion to her needs. In any event, the focus of the present application is her present and future needs and whatever may have happened in the past, does not inform the Court’s decision about her present needs, and future needs. She is clearly in need, and is unable to support herself adequately.
      7. The focus then turns to the Husband’s capacity to pay the spousal maintenance sought. The Husband’s most recent financial statement was sworn 12 July 2016, before a notary public in (country omitted). He deposes that his only income is from the (omitted) Pension Scheme which gives him a benefit, expressed in Australian dollars, of $1,094 per week. He deposes to personal expenditure of $1,427 per week. He, of course, did not make himself available for cross-examination on his financial circumstances and his adjournment application was declined, as was an earlier application to give evidence by video link.
      8. Nonetheless, even a cursory examination of the expenditure in his financial statement raises issues of concern. It is not clear, for example, whether there is a relationship between the trustees of (omitted) settlement and the Husband, relating to the mortgage or rent payments at item 21 of his financial statement. This accounts for $363 of weekly expenditure. It is unclear what property the rates or levies at item 22 relate to. This is $38 per week. He claims MasterCard payments of $100 per week at item 30, but one can only assume that he funds some of the expenditure referred to at part N of his financial statement, via his Mastercard, so the $100 per week is, in effect, double dipping.
      9. His claim for $350 per week for food is manifestly unreasonable, compared to the Wife’s claim of $300 per week, which includes the party’s son. He claims tobacco of $60 per week, in circumstances where the Court is not prepared to allow that expenditure in priority to meeting the needs of his Wife. In other words, even if no attention were directed to the question of whether the Husband has properly disclosed his income, his claim for expenses does not survive critical scrutiny.
      10. However, the focus of the Wife’s case was very much on the issue of the Husband’s non-disclosure of his financial circumstances, and the reality (she contends) that he has understated his income. The Wife’s argument in this regard, based on the evidence before the Court, is extensively set out in the case outline document prepared by Mr Mark Hodges, her solicitor, filed 14 July 2016. The relevant paragraphs are 13-15.6. These submissions are cross-referenced, not just to the relevant pages of the Wife’s affidavits, but also to source documents which were tendered and came into evidence, for example, as exhibit A1.
      11. As a result of this evidence, the Court is able to make the following findings:
        1. Notwithstanding the assertion contained in the Husband’s financial statement of 12 July 2016, his average monthly income is, more likely than not, in excess of $7000, being income received into his (omitted) Bank account, thus meaning that his weekly income is more like $1,770 per week, rather than the $1,094 that he asserts.
        2. The disclosure by the Husband at item 45 of his financial statement of his interest in a (omitted) retirement plan is insufficient, and misleading. He gives no value, even though he has been directed to provide information in relation to this asset and has declined to do so and even though the Wife’s expert evidence provides value in this regard. Significantly, in the present context, however, there is reason to believe that not only is this an asset which is valuable in the Husband’s hands, but it is also an asset that he could presently draw on, and which would supplement his income.
        1. The Husband has failed to properly account for the nature and value of his interest in the (omitted) Pension Scheme. The Wife’s evidence suggests that in addition to the yearly annuity that he receives as monthly income, he took a substantial lump sum benefit, in respect of which he has failed to make adequate disclosure as to how it was dealt with.
        1. Orders made on 19 May 2016 required the Husband to disclose the source of certain regular deposits into his (omitted) Bank account. He failed to do so. The Wife believes that the Husband has an interest in a (omitted) bank account and that this may explain the payments into the (omitted) Bank account. It is not clear whether this is the case or not. The Husband’s failure to disclose, as ordered, is merely one example of many in this case. The Court accepts that the amounts in question are relatively small, but the obligation on the Husband to disclose is clear, and he has failed to do so.
  1. The Wife has established the necessary elements to justify making an order for interim spousal maintenance in the sum of $1,000 weekly.


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