Berger and Tallis - [2018] FamCA 1112

FAMILY COURT OF AUSTRALIA

BERGER & TALLIS

[2018] FamCA 1112

FAMILY LAW – PROPERTY – Interim spousal maintenance application – Where the de facto husband seeks orders that the de facto wife pay him periodic spousal maintenance – Where the husband asserts that he is unable to support himself by reason of mental incapacity for appropriate gainful employment – Where the Court finds that the evidence is not of sufficient weight to support that proposition – Application dismissed.

Evidence Act 1995 (Cth), ss. 79(1), 140, 177(1)
Family Law Act 1975 (Cth) ss. 75(2), 90SF(1)

Family Law Rules 2004 (Cth), r. 15.41

Edgar & Strofield [2016] FamCAFC 93
Hall v Hall [2016] 257 CLR 490
Makita (Australia) Pty Ltd v Sprowles 52 NSWLR 705
Paric v John Holland (Construction) Pty Limited (1985) 62 ALR 85
Ramsay v Watson (1961) 108 CLR 642

APPLICANT:

Ms Berger

RESPONDENT:

Ms Tallis

FILE NUMBER:

SYC

3335

2018

DATE DELIVERED:

21 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

12 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kaylinger

SOLICITOR FOR THE APPLICANT:

Helen Cook Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

Santone Lawyers

Orders

Order 5 of the interim orders sought in the husband’s Amended Initiating Application filed on 17 July 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3335 of 2018

Ms Berger

Applicant

And

Ms Tallis

Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an application by the de facto husband, Mr Berger (“the husband”) for interim spousal maintenance. The de facto wife, Ms Tallis (“the wife”) opposes that application.

Background

The husband is 63 years of age and is currently unemployed. He contends that he suffers from depression and anxiety, which prevents him from engaging in appropriate gainful employment that would enable him to support himself adequately. The husband lives with his daughter in B Town, Queensland which, he contends, is a short term arrangement and involves him sleeping on a couch.
The wife is 67 years of age and is currently employed as a health professional at the C Town Hospital. In addition, she continues to own and operate two businesses. The businesses are “D Pty Ltd”, which provides tourist accommodation, and a farm located at E Street, C Town (“the E Street property”).
In August or September 2006, the parties commenced a de facto relationship,…

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 Berger and Tallis

Details

AGLC: Berger and Tallis [2018] FamCA 1112
Case: [2018] FamCA 1112
Decision Date: 21 December 2018

CaseChat Overview and Summary

In the matter of *Berger and Tallis*, heard before McClelland J, the husband sought interim orders in family law proceedings. The wife opposed the application, and the court was required to determine whether to grant the specific interim order sought by the husband.

The central legal issue before the court was the appropriateness of making Order 5 of the husband's Amended Initiating Application. This order related to the husband's request for specific interim relief within the broader family law dispute.

McClelland J dismissed Order 5 of the husband's Amended Initiating Application. The reasoning for this dismissal is not detailed in the provided text, but the outcome indicates that the court found insufficient grounds or justification to grant that particular interim order at that stage of the proceedings.

Orders

Orders of the court

Order 5 of the interim orders sought in the husband’s Amended Initiating Application filed on 17 July 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.