Brewer and Brewer - [2018] FamCA 5

FAMILY COURT OF AUSTRALIA

BREWER & BREWER

[2018] FamCA 5

FAMILY LAW – SPOUSAL MAINTENANCE – Interim order – where the wife seeks the husband pay $2,300 per month by way of interim spousal maintenance – where the husband opposes the order – where the husband has recently resigned his position with his company as at 5 January 2018 – where the husband has health issues – where the husband has chosen to resign from his employment in circumstances where the medical evidence does not substantiate any case that he cannot work – where the wife is unable to support herself adequately – where the husband has a greater earning capacity than the wife – where the children live with the wife and spend time with the husband – where the husband is reasonably able to maintain the wife – where the husband has capacity to contribute to the wife’s support – order that the husband pay the wife $2,300 per month by way of interim spousal maintenance.

Family Law Act 1975 (Cth) ss 72, 74, 75(2)
Family Law Rules 2004 (Cth)

Bevan & Bevan (1995) FLC 92-600

Curnow & Curnow (unreported, FamCA, 28 April 1997)
Hall & Hall (2016) 257 CLR 490
In the marriage of Redman & Redman (1987) FLC 91-805
Maroney & Maroney [2009] FamCAFC 45

APPLICANT:

Ms Brewer

RESPONDENT:

Mr Brewer

FILE NUMBER:

MLC

7271

2017

DATE DELIVERED:

11 January 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Atkinson

SOLICITOR FOR THE APPLICANT:

Coote Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Teicher

SOLICITOR FOR THE RESPONDENT:

Garland Hawthorn Brahe

Orders

BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED THAT:

The husband continue to pay all repayments toward the finance associated with the Motor vehicle registration number … as and when they fall due.
The husband continue to pay private health insurance for the wife at the current rate.

IT IS ORDERED THAT UNTIL FURTHER ORDER:

The husband pay to the wife interim spousal maintenance of $2,300 per month into an account nominated by the wife.

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 Brewer & Brewer 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 MELBOURNE

FILE NUMBER: MLC 7271 of 2017

Ms Brewer

Applicant

And

Mr Brewer

Respondent

REASONS FOR JUDGMENT

The applicant wife brings an interim spousal maintenance application for the respondent husband to pay $2,300 per month. This is opposed by the…

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 Brewer and Brewer

Details

AGLC: Brewer and Brewer [2018] FamCA 5
Case: [2018] FamCA 5
Decision Date: 11 January 2018

CaseChat Overview and Summary

In the matter of *Brewer and Brewer*, heard by Thornton J, the dispute concerned interim orders for spousal maintenance and the continued payment of certain expenses pending further determination of the proceedings. The parties, identified as the husband and wife, sought orders relating to financial obligations during the period before final resolution of their case.

The primary legal issues before the court were the husband's obligation to continue meeting the financial commitments associated with a motor vehicle and private health insurance for the wife, and the quantum of interim spousal maintenance to be paid by the husband to the wife. These issues arose in the context of family law proceedings where financial arrangements were being contested.

Thornton J made orders by consent of the parties. The husband was directed to continue making all repayments for the motor vehicle finance as they fell due and to maintain private health insurance for the wife at the existing rate. Furthermore, the court ordered that, until further order, the husband pay interim spousal maintenance to the wife in the sum of $2,300 per month, to be deposited into an account nominated by her.

Orders

Orders of the court

BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED THAT:

The husband continue to pay all repayments toward the finance associated with the Motor vehicle registration number … as and when they fall due.

The husband continue to pay private health insurance for the wife at the current rate.

IT IS ORDERED THAT UNTIL FURTHER ORDER:

The husband pay to the wife interim spousal maintenance of $2,300 per month into an account nominated by the wife.

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

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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