WIFE SEEKS SPOUSAL MAINTENANCE FROM HUSBAND AS WELL AS RECOVERY OF HER BELONGINGS FOUND IN THE PROPERTY OWNED BY THE HUSBAND AND HIS BROTHER
Arya v Sathio (No 2) [2020] NSWSC 1538 (2 November 2020)
This case involves the wife seeking for spousal maintenance and orders to grant her access to the premises owned by the husband and his brother for the purposes of permitting her to remove specific items.
Facts:
Judgment was made by the court that the registered proprietors of the Vaucluse property are the husband and his brother, because of this, the wife filed for an application for the following orders:
1. Pending further Order, the Husband pay her spouse maintenance in the sum of $2,300 per week, the first payment to be made within 7 days of the date of this Order, and then weekly thereafter; and the sum of $14,000 within 7 days; and
2. That on a date nominated by the wife, the husband and his brother grant access to the property situated and known as the Vaucluse Property for the purposes of permitting the her to remove specific items.
The husband continues to submit that the Court should not make any order for interim spousal maintenance in favour of the wife.
The husband gave evidence that, as a result of the COVID-19 pandemic, the payroll officer of the husband's employer, stated that his gross salary was $137,024.97, which had been reduced by 15% to $116,471.23, inclusive of superannuation.
The husband's net fortnightly salary was therefore $2,974.96.
The husband estimated his weekly expenses as being $2,431 or $4,862 per fortnight.
It appears that the husband's weekly expenses have reduced from $4,190 per week to $2,431 per week. That remains substantially more than the husband's weekly net salary of $1,487.48.
As for the second order, the wife states that “In the photographs annexed to the report, I am able to identify items that were contributed by me (such as furniture and furnishings).
Items of significant importance that were held at the Vaucluse property have not been made available to me, such as a wedding gift from my mother (being an heirloom tea set) and artworks gifted to me by children I have sponsored. I find it very distressing to see somebody else living in the Vaucluse property and using the furniture, furnishings and belongings that belong to me. I wish to retain items of furniture and furnishings held within the Vaucluse property on a final basis.”
The brother of the husband objects to the wife, or anyone on her behalf, having leave to enter the Vaucluse Property, as that may disrupt the current tenant’s occupation and enjoyment of the property.
Issue: Should the court grant the orders sought by the wife?
Held:
The husband's aspiration that the Court would award the wife no interim spousal maintenance was, in the court’s view, always a mirage.
The difficulty that the Court has faced is the need to determine a fair and realistic amount, given that, in reality, the husband continues to have access to financial resources that are substantially greater than his apparent income.
Additionally, the effect of the COVID-19 pandemic on the husband's income that that has been explained above must be taken into consideration.
In response to the wife's application for an order for interim maintenance, the court rejects her claim for interim maintenance in the amount of $2,117 per week, but concluded that, in principle, it was appropriate for the Court to make an order for the payment by the husband to the wife of interim maintenance in the amount of $1,300 per week.
As to the second order sought by the wife, the court satisfied that it should lend its aid to the wife in trying to recover any of her possessions of which she may have been deprived by the brutal circumstances in which she was evicted from the Vaucluse Property without proper notice.
The circumstances of the eviction, on the evidence before the Court, had a seriously deleterious effect on the wife's well-being and psychological health.
Conclusion:
The wife is entitled to a spousal maintenance of $1,300 per week and to recover her items in the property.
