CARMAN & CARMAN

Case [2017] FamCA 99

FAMILY COURT OF AUSTRALIA

CARMAN & CARMAN [2017] FamCA 99

FAMILY LAW – SPOUSAL MAINTENANCE – Application pursuant to s 83 of the Family Law Act 1975 (Cth) to vary spousal maintenance orders – Where the wife’s circumstances have changed so as to justify a variation of the current spouse maintenance order – Where a child of the marriage has been diagnosed with a medical condition – Where the wife is unable to support herself adequately – Where the husband is not reasonably able to provide ongoing support to the wife – Application dismissed.

FAMILY LAW – PROPERTY - Settlement in relation to marriage – Application to vary substantive orders for property settlement pursuant to s 79A(1)(d) of the Family Law Act 1975 (Cth) – Where the wife must establish that circumstances of an exceptional nature have arisen relating to the care, welfare and development of a child of the marriage – Where the consequences of a medical condition suffered by a child of the marriage are circumstances of an exceptional nature – Where the wife has not established that she or the child will suffer hardship if an order is not made – Application dismissed.
Family Law Act 1975 (Cth) ss 75(2), 79, 79A, 83.
Aumann & Aumann (Unreported, Judgment of Strauss, Baker and Graham JJ, Appeal number 128 and 171 of 1989, 1 November 1989)
Fewster & Drake [2016] FamCAFC 214
Freestone & Freestone [2013] FamCAFC 190
Keane & Keane [2013] FamCA 332
In the Marriage of Liu (1984) FLC 91-572
Marras & Marras (1985) FLC 91-635
Milavic & Banks [2016] FamCA 884
Public Trustee v Gilbert (1991) FLC 92-211
Sadlier & Sadlier [2015] FamCAFC 130
Sandrk (1991) FLC 92-260
Simpson & Hamlin (1984) FLC 91-576
Y & Y (1995) FamCA 102
APPLICANT: Ms Carman
RESPONDENT: Mr Carman
FILE NUMBER: SYC 5092 of 2012
DATE DELIVERED: 27 February 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Loughnan J
HEARING DATE: 9 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spain
SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers
COUNSEL FOR THE RESPONDENT: Mr Shaw

Orders

  1. The Amended Initiating Application filed on 21 December 2016 by the wife is dismissed.

  2. Paragraph 1.2 of the orders made on 15 July 2016 is discharged.

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 Carman & Carman 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:  SYC5092 of 2012

Ms Carman

Applicant

And

Mr Carman

Respondent

REASONS FOR JUDGMENT

Introduction

  1. Ms Carman and Mr Carman…

Continue reading CARMAN & CARMAN

Sign in free to access the full text

Details
AGLC
CARMAN & CARMAN [2017] FamCA 99
Case
[2017] FamCA 99
Decision Date

CaseChat Overview and Summary

In *Carman & Carman*, the wife applied to the Federal Circuit and Family Court of Australia (Family Law Division) seeking to vary existing spousal maintenance orders and to vary substantive property settlement orders. The applications were brought pursuant to s 83 and s 79A(1)(d) of the *Family Law Act 1975* (Cth) respectively. The wife contended that her circumstances had changed, justifying a variation of spousal maintenance, and that exceptional circumstances had arisen relating to the care, welfare, and development of a child of the marriage, warranting variation of the property settlement orders.

The court was required to determine whether the wife had established grounds for varying the spousal maintenance order, specifically whether her circumstances had changed such that she was unable to support herself adequately and whether the husband was not reasonably able to provide ongoing support. Concurrently, the court had to consider whether exceptional circumstances had arisen concerning the care, welfare, and development of a child of the marriage, which would justify varying the property settlement orders under s 79A(1)(d).

Loughnan J found that while a child of the marriage had been diagnosed with a medical condition, and the wife was unable to support herself adequately, the husband was not reasonably able to provide ongoing support to the wife. Consequently, the application to vary spousal maintenance was dismissed. Regarding the property settlement, the court determined that although the child's medical condition constituted circumstances of an exceptional nature, the wife had not established that she or the child would suffer hardship if an order was not made. Therefore, this application was also dismissed.

The Amended Initiating Application filed by the wife on 21 December 2016 was dismissed, and paragraph 1.2 of the orders made on 15 July 2016 was discharged.

Orders

Orders of the court

1.

The Amended Initiating Application filed on 21 December 2016 by the wife is dismissed.

2.

Paragraph 1.2 of the orders made on 15 July 2016 is discharged.

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.