ASKEW & VARGO - [2019] FCCA 2221

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASKEW & VARGO

[2019] FCCA 2221

Catchwords:
FAMILY LAW – Interim spousal maintenance – de facto relationship – applicable principles – applicant wife inherits $1.6M – inheritance applied, in part, in series of property purchases – other part of inheritance retained in cash and on term deposit – part inheritance expended during relationship – whether applicant discharges evidentiary burden of satisfying court of threshold requirement that she is unable to support herself adequately – whether proper to make an interim order for spousal maintenance – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.74, 77, 90SB, 90SD, 90SE, 90SF, 90SG, 90SI, 90SS, 90RB
Evidence Act 1995 (Cth), s.40

Cases cited:

Adami & Adami [2019] FamCA 162
Anderson & Anderson [2014] FamCA 766
Auden & Auden [2019] FamCA 17
Bevan and Bevan (1995) FLC 92-600
Bodilly & Hand [2019] FamCA 210
Brown & Brown (2007) FLC 93-316
Clauson & Clauson (1995) FLC 92-595
Eliades & Eliades (1981) FCL 91-022
Fewster & Drake [2016] FamCAFC 214
H & H (1985) FCL 91-654
Hall v Hall (2016) 257 CLR 490
Hendriske & Hendriske (1976) FCL 90
JS & GP [2006] FamCA 150
Maroney & Maroney [2009] FamCA 45
McCrossen & McCrossen (2006) FLC 93-282
Mee & Fergusson (1986) FLC 91-716
Mitchel & Mitchell (1995) FLC 92-601
Moller & Moller [2017] FamCA 841
Nutting and Nutting (1978) FLC 90-410
Smyllie & Smyllie [2019] FamCA 318

Applicant:

MS ASKEW

Respondent:

MR VARGO

File Number:

MLC 6453 of 2019

Judgment of:

Judge A Kelly

Hearing date:

31 July 2019

Date of Last Submission:

31 July 2019

Delivered at:

Melbourne

Delivered on:

14 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Wilson

Solicitors for the Applicant:

Berger Kordos Lawyers

Counsel for the Respondent:

Ms Hannan

Solicitors for the Respondent:

Lakey Family Law and Mediation

ORDERS

The application for interim spousal maintenance be dismissed.
By 4.00pm on 21 August 2019, the parties file and serve any submissions (not exceeding 3 pages) in relation to costs.
Any application for costs be decided on the papers.

IT IS NOTED that publication of this judgment under the pseudonym Askew & Vargo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6453 of 2019

MS ASKEW

Applicant

And

MR VARGO

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment explain my conclusions respecting a claim for interim maintenance pursuant to s 90SE of the Family Law Act 1975 (Cth) (Act). In summary, I have concluded that the application should be dismissed. That is because the applicant has not discharged the onus of establishing that a threshold requirement under s 90SF(1) has been satisfied. I am not satisfied that the applicant is presently unable to support herself adequately. Nor am I satisfied that in the circumstances of this case, it would be proper to make an order for interim maintenance.
By her Initiating Application filed on 13 June 2019, the applicant mother seeks final…

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 ASKEW & VARGO

Details

AGLC: ASKEW & VARGO [2019] FCCA 2221
Case: [2019] FCCA 2221
Decision Date: 14 August 2019

CaseChat Overview and Summary

In *Askew & Vargo*, heard by Judge A Kelly, the applicant wife sought interim spousal maintenance from the respondent husband. The dispute arose within the context of a de facto relationship, where the applicant had recently inherited a significant sum of $1.6 million. This inheritance had been applied towards property purchases, retained in cash and term deposits, and also expended during the course of the relationship.

The central legal issues before the court were whether the applicant had discharged the evidentiary burden of satisfying the court that she was unable to support herself adequately, and consequently, whether it was proper to make an interim order for spousal maintenance.

Judge Kelly's reasoning focused on the applicant's financial position following the inheritance. The court found that the applicant had not met the threshold requirement of demonstrating an inability to support herself adequately, given the substantial funds she had received and retained. The court applied the principles governing interim spousal maintenance, which require a clear demonstration of need.

The application for interim spousal maintenance was dismissed. The parties were ordered to file and serve submissions regarding costs by 4.00pm on 21 August 2019, with any costs application to be decided on the papers.

Orders

Orders of the court

The application for interim spousal maintenance be dismissed.

By 4.00pm on 21 August 2019, the parties file and serve any submissions (not exceeding 3 pages) in relation to costs.

Any application for costs be decided on the papers.

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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