Chase and Chase

[2007] FamCA 194

FAMILY COURT OF AUSTRALIA

CHASE & CHASE [2007] FamCA 194

FAMILY LAW - SPOUSAL MAINTENANCE - Interim

APPLICANT: MRS CHASE

RESPONDENT: MR CHASE

FILE NUMBER: HBF 923 of 2006

DATE DELIVERED: 27 February 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 27 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trezise

COUNSEL FOR THE RESPONDENT: Mr Smith

Orders

1. THAT the applicant wife’s application for variation of order for interim spousal maintenance filed 1 February 2007 be dismissed.

2. THAT costs are reserved.

   IT IS DIRECTED

3. THAT a copy of the reasons for these orders be taken out and placed on the Court file.

   IT IS CERTIFIED

4. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 923 of 2006

MRS CHASE

Applicant

And

MR CHASE

Respondent

REASONS FOR JUDGMENT  

1. This is an application for variation of a maintenance order made by this Court on 1 August 2006.  The parties married and commenced cohabitation in 1981.  They apparently separated in May 2006 and they have been occupying the time of this court since that date.

2. There are two children of their marriage who are both over the age of 18 years and when the matter came before on 1 August, I granted leave for the wife to amend her application seeking orders for adult child maintenance.

3. When the matter came before me I ordered the husband to pay by way of spousal maintenance to the wife the normal repayments on the home medical insurance and periodic spousal maintenance of $1000 per month for a period of six months.

4. I do not have the benefit before me of my reasons at that time, but I have some recollection of this case and the recollection is that I made a determination at that time that the wife, given six months, would have the capacity to re-employ herself or to employ herself so that she would earn some income.

5. The evidence before me of the wife is that, within a few days after my order, obtained employment as a nurse at a day surgery centre, and it is clear that she has earned income of between $700 and $800 per calendar month in terms of that employment for the period she was there.

6. She earned about $780 in August, about $800 in September and about $675 in October 2006.  She then left that employment of her own accord, she says because of stress, and obtained employment at a public hospital.

7. In terms of that employment she said, in essence, two things:  (1) she was stressed and secondly she did not have the qualifications to manage that employment.

8. She then sought employment at a nursing home and it appears on the evidence before me that those employers have embraced the Commonwealth's new employment legislation with some gusto.

9. The wife continues to be involved in terms of her desire to earn income from art.  On her evidence she earns little income in that regard but seems to spend between $77 and $100 per week at least in terms of that endeavour.

10. As Mr Smith quite rightly argues, the first question is whether under section 83(2) the court ought to entertain the application for variation, is what in essence it is, as there is no evidence, or it is not put that there has been a change.

11. Clearly there has been a change in terms of the wife's earnings and in terms of the husband's income which has been substantially increased.  So I am satisfied there has been a change such as I am able to deal with that aspect of it.

12. What does cause me concern, however, is I made a determination in the hope that the wife would find employment herself, and that was the reason I put six months in place, and I suspect part of the reasons I made an order for $1000 per month for that period of time.

13. The wife says that there are significant medical matters which prevent her from working and yet before me there is no medical evidence apart from the claimed assertions by the wife in that regard.

14. There is a hurdle for the wife to climb over to come back on an interim basis and say, "Well, look, your Honour, you were wrong.  I didn't have the capacity to earn income," but here is the evidence.  The evidence in that regard is in fact at some levels, as Mr Smith put, counter-intuitive, in that she has earned income over that period of time.

15. There is no doubt that if I made an order for $1000 a month or $1500 a month or $2,500, that the husband has the capacity to pay.  But my initial determination is that the wife had the capacity to earn some $400 or $500 a week which is the needs that she asserts.

16. The wife has not disappointed the court in that she has done so and it is open for the court to find that she is able to continue to do so. 

17. Accordingly the application to vary the order made on 1 August is dismissed.

18. I will reserve the question of costs and I will direct that a transcript of my reasons in relation to this matter, and in relation to the proceedings on

    
    

    1 August 2006, be taken out and put on the court file as they should have been last time.

I certify that the preceding 18 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:   27 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CHASE & CHASE