Arden & Arden - [2021] FCCA 1201

FEDERAL CIRCUIT COURT OF AUSTRALIA
Arden & Arden [2021] FCCA 1201

File number(s): SYC 2503 of 2020

Judgment of: JUDGE MORLEY

Date of judgment: 21 May 2021

Catchwords: FAMILY LAW – interim spousal maintenance – lump sum and periodic spousal maintenance – where the quantum to be paid to the wife in the form of lump sum spousal maintenance is in dispute – where the husband opposes an order for periodic spousal maintenance –marriage of approximately 24 years – where the wife is not able to adequately support herself – where the wife has the primary care of a child of the marriage – where that child suffers from severe mental health issues – where the husband has an excess of income over expenses and is reasonably able to maintain the wife

Legislation:
Evidence Act 1995 (Cth) ss 50

Family Law Act 1975 (Cth) ss 69ZL, 72, 74, 75, 79, 80, 83, 117

Federal Circuit Court Rules 2001 (Cth) rr 24.03

Cases cited:
Bevan & Bevan (1995) FLC 92-600

Mee & Ferguson (1986) FLC 91-716

In the Marriage of Redman (1987) 11 Fam LR 411

In the Marriage of DJM and JLM (1998) 23 Fam LR 396

In the Marriage of Vautin (1998) 23 Fam LR 627

Maroney & Maroney [2009] FamCAFC 45

Hall & Hall (2016) FLC 93-709

Britt & Britt (2017) FLC 93-764

Number of paragraphs: 247

Date of last submission/s: 29 April 2021

Date of hearing: 29 April 2021

Place: Sydney

Counsel for the Applicant: Ms Spain of Counsel

Solicitor for the Applicant: Somerville Legal

Counsel for the Respondent: Ms Beck of Counsel

Solicitor for the Respondent: Fox & Staniland Lawyers
ORDERS

SYC 2503 of 2020

BETWEEN: MS ARDEN

AND: MR ARDEN

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS THAT:
1.Within 14 days, the Husband pay to the wife the sum of $25,000 by way of lump sum spousal maintenance, with the characterisation and treatment of that payment to be considered on final hearing of the financial proceedings between the parties.
2.The husband pay to the wife the sum of $1,300 per week, by way of periodic spousal maintenance, such sum to be paid weekly by the Husband into the Wife’s Westpac Choice account, BSB: ...83; Account No. ...93, the first such payment to be made on an arrears basis on Thursday 27 May 2021.
3.The proceedings are listed for Call-Over for the making of trial directions and the allocation of a Compliance Check date on a date and at a time to be advised.

THE COURT NOTES THAT:

A.All interim applications currently before the Court have been exhausted.
B.In relation to the allocation of Call-Over, the matter has been given an administrative listing of 3 December 2021 at 9:00AM. This is a listing for ease of administration, and the matter will be relisted from this date and time to another date and time in 2022. Appearances are not required, nor will be taken on the December date.

Section…

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.

Continue reading Arden & Arden

Details

AGLC: Arden & Arden [2021] FCCA 1201
Case: [2021] FCCA 1201
Decision Date: 21 May 2021

CaseChat Overview and Summary

In the matter of *Arden & Arden*, Ms Arden sought orders against Mr Arden in the Family Court of Australia. The dispute concerned spousal maintenance.

The court was required to determine the appropriate interim orders for spousal maintenance, both as a lump sum and periodically, pending the final hearing of the financial proceedings between the parties.

Morley J ordered that the Husband pay to the Wife a lump sum of $25,000 within 14 days, with its characterisation and treatment to be determined at the final hearing. Additionally, the Husband was ordered to pay periodic spousal maintenance of $1,300 per week, with the first payment to be made on an arrears basis on 27 May 2021. The proceedings were listed for a call-over for trial directions and the allocation of a compliance check date in 2022.

Orders

Orders of the court

SYC 2503 of 2020

BETWEEN:

MS ARDEN

AND:

MR ARDEN

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS THAT:

1. Within 14 days, the Husband pay to the wife the sum of $25,000 by way of lump sum spousal maintenance, with the characterisation and treatment of that payment to be considered on final hearing of the financial proceedings between the parties.

2. The husband pay to the wife the sum of $1,300 per week, by way of periodic spousal maintenance, such sum to be paid weekly by the Husband into the Wife’s Westpac Choice account, BSB: ...83; Account No. ...93, the first such payment to be made on an arrears basis on Thursday 27 May 2021.

3. The proceedings are listed for Call-Over for the making of trial directions and the allocation of a Compliance Check date on a date and at a time to be advised.

THE COURT NOTES THAT:

A. All interim applications currently before the Court have been exhausted.

B. In relation to the allocation of Call-Over, the matter has been given an administrative listing of 3 December 2021 at 9:00AM. This is a listing for ease of administration, and the matter will be relisted from this date and time to another date and time in 2022. Appearances are not required, nor will be taken on the December date.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 2503 of 2020
Judgment of:	JUDGE MORLEY
Date of judgment:	21 May 2021
Catchwords:	FAMILY LAW – interim spousal maintenance – lump sum and periodic spousal maintenance – where the quantum to be paid to the wife in the form of lump sum spousal maintenance is in dispute – where the husband opposes an order for periodic spousal maintenance –marriage of approximately 24 years – where the wife is not able to adequately support herself – where the wife has the primary care of a child of the marriage – where that child suffers from severe mental health issues – where the husband has an excess of income over expenses and is reasonably able to maintain the wife
Legislation:	*Evidence Act 1995* (Cth) ss 50 Family Law Act 1975 (Cth) ss 69ZL, 72, 74, 75, 79, 80, 83, 117 Federal Circuit Court Rules 2001 (Cth) rr 24.03
Cases cited:	Bevan & Bevan (1995) FLC 92-600 Mee & Ferguson (1986) FLC 91-716 In the Marriage of Redman (1987) 11 Fam LR 411 In the Marriage of DJM and JLM (1998) 23 Fam LR 396 In the Marriage of Vautin (1998) 23 Fam LR 627 Maroney & Maroney [2009] FamCAFC 45 Hall & Hall (2016) FLC 93-709 Britt & Britt (2017) FLC 93-764
Number of paragraphs:	247
Date of last submission/s:	29 April 2021
Date of hearing:	29 April 2021
Place:	Sydney
Counsel for the Applicant:	Ms Spain of Counsel
Solicitor for the Applicant:	Somerville Legal
Counsel for the Respondent:	Ms Beck of Counsel
Solicitor for the Respondent:	Fox & Staniland Lawyers

SYC 2503 of 2020
BETWEEN:	MS ARDEN
AND:	MR ARDEN

ORDER MADE BY:	JUDGE MORLEY
DATE OF ORDER:	21 MAY 2021