ALLMAN & ALLMAN - [2015] FamCA 806

FAMILY COURT OF AUSTRALIA

ALLMAN & ALLMAN

[2015] FamCA 806

FAMILY LAW – Interim proceedings – Where the wife seeks an interim property order to fund legal fees – Where the parties have been separated for about 10 years – Where the parties reside on the same property but in different dwellings – Where the husband asserts and it is accepted that the husband has no capacity to fund the order sought by the wife – Where there is contention surrounding the wife’s employment circumstances – Where it would not be appropriate to make an interim property order in the wife’s favour.

FAMILY LAW – Interim proceedings – Spouse maintenance – Where the wife seeks an order that the husband pay her $500 per week –Where no finding can be made in interim proceedings as to the wife’s employment and earning capacity – Where the husband has health conditions - Where the husband has been responsible for payments associated with the parties’ property – Where the wife has not established the husband has a capacity to make spousal maintenance payments - Where there is not sufficient evidence as to the wife’s level of need – Where it is found that no interim order for periodic spousal maintenance should be made.

Family Law Act 1975 (Cth)

Bevan and Bevan (1995) FLC 92-600
Harris (1993) FLC 92-469
Oates and Crest (2008) FLC 93-365
Redman and Redman (1987) FLC 91-805
Strahan (2011) FLC 93-466

Williamson and Williamson (1978) FLC 90-505

APPLICANT:

Ms Allman

RESPONDENT:

Mr Allman

FILE NUMBER:

SYC

8552

2007

DATE DELIVERED:

30 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

21 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR FOR THE APPLICANT:

Manning Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

Orders

The wife’s application for interim property order and for an interim sale of the Suburb B property is dismissed.
I note that the husband deposes to the fact that he makes regular repayments in respect of the current mortgage and insurance on the Suburb B property.
The wife’s application for interim spousal maintenance is dismissed.
The costs of both parties are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allman & Allman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8552 of 2007

Ms Allman

Applicant

And

Mr Allman

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By way of Amended Application in a Case filed 9 July 2015 Ms Allman (“the wife”) seeks interim orders for spousal maintenance and partial property settlement. Specifically, the wife seeks that the husband pay her interim periodic spousal maintenance in the amount of $500 per week. In addition, she seeks that the husband pay to her the amount of $50,000. The wife asserts that this amount could be provided to her by the parties…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ALLMAN & ALLMAN [2015] FamCA 806
Case: [2015] FamCA 806
Decision Date: 30 September 2015

CaseChat Overview and Summary

In the matter of *Allman & Allman*, the wife sought interim property orders, including an interim sale of the parties' property, and interim spousal maintenance from the husband. The parties had been separated for approximately ten years, residing on the same property but in separate dwellings. The husband asserted, and it was accepted by the court, that he lacked the capacity to fund the property order sought by the wife. There was also contention regarding the wife's employment circumstances.

The court was required to determine whether to make an interim property order in the wife's favour, considering the husband's asserted lack of capacity to fund it and the disputed employment circumstances of the wife. Additionally, the court had to consider the wife's application for interim spousal maintenance of $500 per week, assessing the husband's capacity to pay and the wife's established need, particularly in light of the husband's health conditions and his responsibility for property-related payments.

His Honour, Watts J, found that it would not be appropriate to make an interim property order in the wife's favour, given the husband's lack of capacity and the contested employment situation. Regarding spousal maintenance, the court could not make a finding on the wife's employment and earning capacity at the interim stage. Furthermore, the evidence did not establish the husband's capacity to make spousal maintenance payments, nor was there sufficient evidence of the wife's level of need. Consequently, the court dismissed both the wife's application for an interim property order and for interim spousal maintenance. The costs of both parties were reserved.

Orders

Orders of the court

The wife’s application for interim property order and for an interim sale of the Suburb B property is dismissed.

I note that the husband deposes to the fact that he makes regular repayments in respect of the current mortgage and insurance on the Suburb B property.

The wife’s application for interim spousal maintenance is dismissed.

The costs of both parties are reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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