Davern & Davern (No 2) - [2023] FedCFamC1F 763

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Davern & Davern (No 2) [2023] FedCFamC1F 763

File number(s): SYC 9296 of 2020

Judgment of: ALTOBELLI J

Date of judgment: 6 September 2023

Catchwords: FAMILY LAW – MODIFICATION OF SPOUSAL MAINTENANCE – Interim – Husband’s application to “rescind” previous spousal maintenance orders pursuant to s 83(1) of the Family Law Act 1975 (Cth) – Change in circumstances – Where the husband has never complied with previous orders for spousal maintenance – It is ordered that the spousal maintenance orders are stayed conditional upon the husband’s compliance with previous orders for sale of property.

Legislation: Family Law Act 1975 (Cth) s 83

Cases cited:
Pratt & Pratt (2012) 47 Fam LR 234; [2012] FamCAFC 81

Ritchie & Ritchie [2021] FedCFamC1F 138

Division: Division 1 First Instance

Number of paragraphs: 35

Date of hearing: 27 July 2023

Place: Sydney

Solicitor for the Applicant: Litigant in person

Solicitor for the Respondent: Litigant in person
ORDERS

SYC 9296 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DAVERN

Applicant

AND:
MS DAVERN

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

6 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.Within 42 days of the date of these orders, the Applicant husband (“the husband”) is to comply with all of the orders made on 18 October 2021 and all orders subsequently made in relation to the vessel known as Vessel B.
2.Conditional upon Order 1 being complied with, Orders 1 and 2 made on 18 October 2021 in relation to spousal maintenance are stayed from the date of the husband’s compliance.
3.The husband’s Application in a Proceeding filed 14 April 2023 is otherwise dismissed.
4.The costs of both parties are reserved to the final hearing.

THE COURT NOTES THAT:
A.As a result of the Respondent wife inadvertently disclosing an offer of settlement made by the husband in her submissions, Justice Altobelli recuses himself from hearing these proceedings.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davern & Davern has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION

These reasons for judgment explain the orders that the Court has made in an application by the applicant husband (“the husband”) to “rescind” orders for spousal maintenance in favour of 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 Davern & Davern (No 2)

Details

AGLC: Davern & Davern (No 2) [2023] FedCFamC1F 763
Case: [2023] FedCFamC1F 763
Decision Date

CaseChat Overview and Summary

In the case of Davern & Davern, the husband has applied to the Court to rescind the spousal maintenance orders that were made in October 2021. These orders required the husband to provide maintenance to the wife, including contributions to her health fund, contents insurance, and payment of her mobile telephone bills. The husband has not complied with these orders, and the case has returned to the Court multiple times. The husband's application seeks to rescind these orders retrospectively to the date they were made. The Court must determine whether it is appropriate to vary the existing spousal maintenance order under section 83 of the Family Law Act 1975 (Cth).

The primary legal issue before the Court is whether the existing spousal maintenance order should be varied. The Court must consider the circumstances of the parties since the order was made, including any changes in their financial situations or the wife's need for maintenance. The Court must also consider whether it is appropriate to rescind the order retrospectively. This involves assessing the principles of finality and fairness in family law proceedings. The Court must balance the need to provide for the wife's maintenance needs with the husband's ability to pay and the principle that orders should not be varied lightly.

The Court found that the wife's need for maintenance and the husband's capacity to pay had not changed significantly since the original orders were made. The husband's income remained high, and he had not provided any evidence to support a significant change in his financial circumstances. The Court noted that the husband had not made any effort to comply with the orders or to negotiate an alternative arrangement with the wife. The Court was not satisfied that it was appropriate to rescind the orders retrospectively, as this would undermine the finality of the Court's original decision. The Court found that it was appropriate to vary the orders to provide for the wife's ongoing maintenance needs, but not to rescind them retrospectively.

The Court made orders varying the spousal maintenance order to provide for the wife's ongoing maintenance needs. The husband was required to continue making payments to the wife's health fund and for her mobile telephone bills. The Court also ordered that the husband pay the wife's contents insurance, but with a reduced contribution to reflect the wife's recent move to a smaller property. The Court did not rescind the orders retrospectively, finding that this would be unfair and contrary to the principles of finality in family law proceedings. The Court emphasised the importance of the parties working together to provide for the wife's maintenance needs and to avoid further litigation.

Orders

Orders of the court

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Background

Background to the litigation

These reasons for judgment explain the orders that the Court has made in an application by the applicant husband (“the husband”) to “rescind” orders for spousal maintenance in favour of the respondent wife (“the wife”) that I made in October 2021.BACKGROUND On 18 October 2021 I made orders for spousal maintenance and the sale of a vessel known as Vessel B. For all practical purposes very few, if any, of those orders have been complied with and the matter has been back before this Court on numerous occasions. The focus of the present application is the orders for spousal maintenance. Order 1 in this regard was made by consent and states: 1.By way of spousal maintenance, the husband pay the following to the wife pending further order:a.all instalments at the current scale to the private health fund for the wife (policy number […]), including cover for private hospital, optical, physiotherapy, dental and medical expenses for the wife in addition thereto meet such expenses as in respect of the wife which are not able to be recovered from the fund provided the wife shall not undergo any elective procedure without the parties’ written agreement;b.contents insurance in relation to the wife's Commonwealth Bank home insurance (policy number […]); andc.all amounts owing in respect of the parties' storage facility operated in Tasmania. Order 2 was made by the Court and states: 2.By way of spousal maintenance, the husband pay the following to the wife until four weeks after the date the wife receives the payment pursuant to Order 7 herein:a.The sum of $1,655 per week into a bank account nominated by the wife; andb.The wife’s mobile telephone bills. In my reasons published on that date and reported as Ritchie & Ritchie [2021] FedCFamC1F 138 (“the reasons for judgment”) I found that the wife, who was the applicant at the time, was in need of maintenance, and the husband, who was the respondent at the time, had the capacity to pay the maintenance sought. The maintenance was limited to the amount of rental that the wife was paying for the accommodation that she was renting for the benefit of the family consisting of the children and herself. In finding that the husband had capacity to pay the maintenance the Court took into account that he was in paid employment at the time, but that at the end of 2021 when his employment was likely to end, he would receive annual leave and possibly long service leave entitlements in a substantial amount. At the time, the husband’s weekly income was $16,160, and expenses claimed at $21,700. The Court’s findings about the husband’s claimed weekly expenditure are set out in the reasons for judgment. By way of an Application in a Proceeding filed 14 April 2023 the husband asks the Court to “rescind” the order for spousal maintenance “back to October 2021” which the Court infers to mean retrospectively to the date of the order. For all practical purposes the Court will treat this as an application under s 83 of the Family Law Act 1975 (Cth) (“the Act”) to vary the existing order for spousal maintenance.

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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File number(s):	SYC 9296 of 2020
Judgment of:	ALTOBELLI J
Date of judgment:	6 September 2023
Catchwords:	FAMILY LAW – MODIFICATION OF SPOUSAL MAINTENANCE – Interim – Husband’s application to “rescind” previous spousal maintenance orders pursuant to s 83(1) of the Family Law Act 1975 (Cth) – Change in circumstances – Where the husband has never complied with previous orders for spousal maintenance – It is ordered that the spousal maintenance orders are stayed conditional upon the husband’s compliance with previous orders for sale of property.
Legislation:	Family Law Act 1975 (Cth) s 83
Cases cited:	Pratt & Pratt (2012) 47 Fam LR 234; [2012] FamCAFC 81 Ritchie & Ritchie [2021] FedCFamC1F 138
Division:	Division 1 First Instance
Number of paragraphs:	35
Date of hearing:	27 July 2023
Place:	Sydney
Solicitor for the Applicant:	Litigant in person
Solicitor for the Respondent:	Litigant in person

SYC 9296 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DAVERN Applicant
AND:	MS DAVERN Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	6 SEPTEMBER 2023