BRICKLEY & MODINE - [2021] FCCA 520

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRICKLEY & MODINE

[2021] FCCA 520

Catchwords:
FAMILY LAW – Spousal maintenance – application by the wife for spousal maintenance – where wife has a demonstrated need – where husband receives sizeable personal income protection insurance payments – where husband has capacity to pay interim spousal maintenance to the wife.

Legislation:

Family Law Act 1975 (Cth), ss.72, 74, 75

Cases cited:

Brown & Brown [2007] FamCA 151

Garston & Yeo (No.2)[2019] FamCAFC 139

Hall v Hall [2016] HCA 23

Hanas & Jolaha [2019] FamCA 483

Maroney & Maroney [2009] FamCAFC 45

MS & PS [2006] FamCA 588

Stein & Stein [2000] FamCA 102

Williamson & Williamson [1978] FamCA 57

Applicant:

MR BRICKLEY

Respondent:

MS MODINE

File Number:

PAC 1345 of 2020

Judgment of:

Judge Obradovic

Hearing date:

26 November 2020

Date of Last Submission:

26 November 2020

Heard at:

Parramatta

Delivered at:

Dubbo

Delivered on:

19 March 2021

REPRESENTATION

Appearing for the Applicant:

Mr Seton

Solicitors for the Applicant:

Ryan & Seton Lawyers

Appearing for the Respondent:

Mr Hall

Solicitors for the Respondent:

Hall Partners

ORDERS

Pending further order, the husband shall pay to the wife an amount of $565 per week in spousal maintenance.
The matter is listed for directions at 2:15pm on 24 May 2021.
The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1345 of 2020

MR BRICKLEY

Applicant

And

MS MODINE

Respondent

REASONS FOR JUDGMENT

Introduction

These are the reasons for judgment in respect of an application for interim spousal maintenance.
The applicant in this application is the respondent in the substantive proceedings (“wife”), and the respondent to the application is the applicant in the substantive proceedings (“husband”).
The wife and husband commenced a relationship in 1999, they were married in 2009 and they separated on a final basis in 2018.
The parties have two children together; Mr F born in 2003 and Y born in 2006.
The wife moves the Court for orders that the husband pay her interim spousal maintenance in the amount of $5000 per month.
Neither the wife nor the husband were cross-examined.

Spousal Maintenance – Relevant Principles

In determining whether to make an order for spousal maintenance, it is appropriate for the Court to determine the issue in the following manner[1]:
a)Can the applicant support themselves adequately in terms of s.72 of the Family Law Act 1975 (Cth) (“the Act”)?
b)If not, what are the applicant’s reasonable needs?
c)What capacity does the respondent have to meet those needs?
d)What order is reasonable, having regard to s.75(2) of the Act?
[1] Hanas & Jolaha [2019] FamCA 483 (at [79] citing MS & PS [2006] FamCA 588;…

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 BRICKLEY & MODINE

Details

AGLC: BRICKLEY & MODINE [2021] FCCA 520
Case: [2021] FCCA 520
Decision Date: 19 March 2021

CaseChat Overview and Summary

This matter concerned an application by the wife for interim spousal maintenance. The husband received significant personal income protection insurance payments, and the wife demonstrated a need for financial support. The court was therefore required to determine whether the husband had the capacity to pay interim spousal maintenance to the wife.

The court considered the wife's demonstrated need and the husband's capacity to pay, which was evidenced by his substantial income protection insurance payments. The legal principles governing spousal maintenance applications, particularly the assessment of need and capacity, were central to the court's determination.

Ultimately, the court found that the husband had the capacity to pay interim spousal maintenance. Accordingly, the husband was ordered to pay the wife $565 per week in spousal maintenance pending further order. The matter was listed for directions, with the parties required to file a jointly drafted agreed statement of issues and an agreed minute of order prior to that hearing.

Orders

Orders of the court

Pending further order, the husband shall pay to the wife an amount of $565 per week in spousal maintenance.

The matter is listed for directions at 2:15pm on 24 May 2021.

The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.

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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