Unable to support herself – Wife awarded spousal maintenance
Unable to support herself:
- The Wife deposes to both X and Mr P suffering from “crippling depression and anxiety” as a result of their exposure to the Husband’s behaviours, and to neither of them spending time with the Husband since separation. The Wife says she has been under significant financial stress since the parties’ separation. She has limited capacity to earn an income. She cannot afford to meet the costs of X’s medical treatment or many of hers or X’s day to day needs. She has been slowly depleting the inheritance she received from her mother’s estate in (omitted) 2016. Until consent orders were made at the time of this hearing, restraining the dissipation of the parties’ joint assets, the Wife was concerned that the Husband would diminish their joint assets including his (country omitted) retirement benefits. The Husband’s decision to sever the joint tenancy on the Property A property without her consent led to her concern that he would deal with his share of the property unless restrained from doing so. As already noted, the restraints sought by the Wife were made by consent at the time of this hearing.
- The Husband relies on his Response filed 10 October 2017, his Affidavit and Financial Statement sworn on the same day. The Husband contends that the Wife is earning more than disclosed and that she has an even greater earning capacity. The Husband’s counsel argues that the Wife has not established the basis for a number of the expenses she claims. For example she adduces no medical evidence as to X’s treatment needs. In relation to the lump sum sought for repairs to the Property A property, except in relation to fence repairs, the Wife fails to adduce evidence to support her contention that the repairs/works are required. The Husband would agree only to the cost of the fence repairs being paid from the Controlled Monies Account.
Can the Wife adequately support herself?
- The Wife is 49 years of age and was out of the workforce for over 20 years while caring for the parties’ three children, looking after the home, supporting the Husband in his career, including relocating the family to (country omitted) and later to the (country omitted). While she was engaged in (business omitted) for a limited time in both (country omitted) and Sydney before the parties separated, the Wife’s income was minimal. She was always financially dependent on the Husband. The Wife deposes to compromised health from depression and anxiety and polyarthritis. She deposes to her daughter X suffering from mental health issues and borderline personality disorder, demanding her time and care. While the Wife received an inheritance in April 2016 of approximately $108,000, she has already spent over half that inheritance on expenses she claims she has otherwise been unable to meet. The Wife’s counsel argues that it is not reasonable for the Wife to utilise all her funds, in circumstances where she has minimal earning capacity and minimal ability to provide for her needs, and the children’s needs into the future.
- The Wife deposes to ceasing full time work in 1994, then significantly reducing her working hours to care for the parties’ first child, Mr B, born in (omitted) 1996. While the Husband says, and I accept, that he supported the Wife to establish and maintain her (omitted) business before the relationship ended, I am satisfied on the basis of the facts set out in the chronology, that the Wife never had the opportunity to engage in full time, well paid employment, as the Husband always did. The Wife deposes to the Husband working long hours and travelling frequently for up to a week approximately once a month, which resulted in the Wife being responsible for the vast majority of domestic and child care tasks. The Wife did not return to the workforce in any meaningful way until after separation when she worked in her own fledgling (omitted) business.
- The Wife deposes to owning the Property A home jointly with the Husband, to bank proceeds of $75,361 (excluding account held for X), $2,918 in a paypal account, $86 in a (omitted) share portfolio and $41,981 (50% of $83,962) in the parties’ Controlled Monies Account. The Wife has a car with an estimated value of $23,000, a (omitted) business of unknown value (generating a small income), household contents with an estimated value of $5,000, and $4,000 in her solicitors’ trust account. She holds gold coins gifted to the three children by her mother. The Wife deposes to a superannuation entitlement held in two funds with a total value of $27,839. She has no liabilities.
- The Husband questions the accuracy of the Wife’s asset position. He relies in particular on her failure to disclose receipt of her inheritance in April 2016, until December 2016. He believes the Wife has held accounts she has not disclosed. While the Wife clearly failed in her legal obligation to fully disclose her financial position when withholding information about her inheritance, I find no evidence to support a finding that the Wife is hiding assets.
- I do not accept the Husband’s counsel’s argument that the Wife’s asset position disqualifies her claim for interim spouse maintenance, and that the case of Mitchell should be distinguished. I am not satisfied it would be reasonable to require the Wife to spend her only capital funds to meet her reasonable needs, while the Husband meets his expenses on the income made possible by the Wife’s domestic contributions made over a 20 year marriage.
- On the basis of my findings, I am satisfied that the Wife cannot adequately support herself and that her reasonable needs total a net $603 a week.
Does the Husband have capacity to pay?
- The Husband’s counsel submits that despite his income and earning capacity, the Husband has no capacity to meet a spouse maintenance claim. He asks the Court to note that the Husband has not been able to establish more permanent living arrangements, while the Wife has had the advantage of living in the former matrimonial home.
Husband’s financial position
- As already noted, on a comparison of each party’s claimed expenses, the Husband claims more for entertainment, for food, holidays, for car expenses, clothing and shoes, chemist, for gifts, for hairdressing and toiletries than does the Wife. In addition he claims $312 a week for other necessary expenses (including cigarettes, a gym membership, and an admin fee from (omitted)). He pays $400 a week in rent to his landlord who is his partner. If I allow $150 for food (the Wife claims $100), $25 for hobbies/entertainment (the Wife claims $25), $10 for gifts (the Wife claims $5) and $200 a week for other necessary expenses (the Wife claims $8), that reduces the Husband’s expenses by $274 a week but still allows him higher expenses than the Wife. He already has a surplus of $184 a week on his own figures. This would give the Husband a total surplus of $458 a week from which to pay interim spouse maintenance.
What order is reasonable having regard to relevant s.75(2) factors?
- The Wife’s counsel submits that the Wife, at 49 years of age, has compromised health, including anxiety, depression and arthritis; the Wife has responsibility for caring for X who suffers from significant mental health issues. Counsel submits that the Husband has the greater capacity to work and to earn a substantial income and that the Wife seeks a modest standard of living, considerably lower than the standard of living the parties enjoyed during the marriage. Counsel submits that even on his own evidence, the Husband enjoys a far superior financial position to that of the Wife.
- The Husband’s counsel submits that the court should have regard to the length of time since separation (3 years), and to the Husband’s financial support to the Wife until 12 months ago.
- The Husband admits he has suffered from various addictions which has resulted in monies being wasted and has necessitated undertaking treatment in a residential facility. The Wife’s unchallenged evidence is that the balance of the mortgages secured on the (country omitted) and Property A properties would have been significantly less, and the value of the parties’ assets greater, had the Husband not gambled. In December 2013, the Husband entered a rehabilitation programme at the (omitted) for 4 weeks, the discharge summary noting that he presented with “compulsive gambling behaviours”. I find this a relevant factor under s.75(2)(o).
- I have determined that the Husband will pay spouse maintenance to the Wife in the sum of $400 a week on an interim basis. I have determined to dismiss the Husband’s interim application for the Property A property to be sold. That will be a question for final hearing if the property matter is not resolved earlier.
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