DAVEY & DAVEY - [2020] FamCA 528

FAMILY COURT OF AUSTRALIA

DAVEY & DAVEY

[2020] FamCA 528

FAMILY LAW – PROPERTY – Interim – Spousal maintenance – Where the wife seeks orders for spousal maintenance by way of periodic and lump sum payments – Where the husband opposes the wife’s application – Whether the wife is able to adequately support herself – Whether the expenses of the children are a factor to be considered – Whether it is just and equitable to make orders for spousal maintenance – Where the husband contends that the wife’s expenditure is reckless – Orders made for spousal maintenance to be paid to the wife by way of periodic payments in respect of her weekly needs and lump sum payments.

FAMILY LAW – PROPERTY – Interim – Partial property distribution – Where the wife seeks orders for partial property distribution to allow payment of debts owing in respect of her legal fees and her motor vehicle – Where the wife seeks orders for payment of the children’s expenses – Where the husband contends that the orders are in the nature of child maintenance orders – Whether orders for partial property distribution will deprive the parties of relief at final hearing – Orders made for interim partial property distribution.

Family Law Act 1975 (Cth) ss 43(c), 66E, 66L, 72, 74, 75(2), 79, 80(1).

Brown and Brown (2007) FLC 93-316
Edgar & Strofield (2016) FLC 93-711
Gabel & Yardley (2008) FLC 93-386
Hall v Hall (2016) 257 CLR 490
In the marriage of Aroney and Aroney (1979) FLC 90-709
In the marriage of Davidson and Davidson (1994) FLC 92-469
In the marriage of Lutzke and Lutzke (1979) FLC 90-714
Iphostrou & Iphostrou [2011] FamCA 20
Maroney & Maroney [2009] FamCAFC 45
Medlow & Medlow (2016) FLC 93-692
Stanford v Stanford (2012) 247 CLR 108
Stein v Stein (2000) FLC 93-004
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Vautin v Vautin (1998) FLC 92-827
Wenz v Archer (2008) 40 Fam LR 212
Yunghanns v Yunghanns (1999) FLC 92-836
Zubcic & Zubcic (2019) FLC 93-918
Zubcic & Zubcic [2018] FamCA 129

APPLICANT:

Mr Davey

RESPONDENT:

Mr Davey

FILE NUMBER:

SYC

3756

2019

DATE DELIVERED:

2 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

18 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Dettmann Longworth Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Roberts

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

That within seven (7) days of the date of these Orders, Mr Davey (“the husband”) and Ms Davey (“the wife”) shall do all things and sign all documents to authorise and direct B Lawyers to pay the money held in trust for the husband and the wife to the parties’ joint C Bank account no. …39 (“Joint C Bank Account”).
Other than as provided in these Orders, that neither the husband nor the wife may withdraw any funds from the Joint C Bank Account without the express written consent of the other.
Subject…

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 DAVEY & DAVEY

Details

AGLC: DAVEY & DAVEY [2020] FamCA 528
Case: [2020] FamCA 528
Decision Date: 2 July 2020

CaseChat Overview and Summary

In *Davey & Davey*, the wife sought interim spousal maintenance and a partial property distribution. The husband opposed these applications. The dispute concerned the wife's ability to support herself, the consideration of children's expenses, the husband's contention of the wife's reckless expenditure, and whether proposed orders for partial property distribution would prejudice final hearing relief.

The court was required to determine whether it was just and equitable to make orders for interim spousal maintenance, considering the wife's financial needs and the husband's opposition. Additionally, the court had to assess whether orders for interim property distribution, specifically for the payment of the wife's legal fees and motor vehicle, and for children's expenses, were appropriate and would not unduly affect the final property settlement.

McClelland DCJ reasoned that interim spousal maintenance was warranted to meet the wife's weekly needs and to address specific lump sum requirements. The court also found it appropriate to make orders for an interim property distribution to facilitate the payment of the wife's legal costs and the purchase of her motor vehicle, distinguishing these from child maintenance orders. The court made orders for periodic and lump sum spousal maintenance, as well as an interim property distribution, subject to certain conditions regarding the withdrawal of funds from a joint bank account.

Orders

Orders of the court

That within seven (7) days of the date of these Orders, Mr Davey (“the husband”) and Ms Davey (“the wife”) shall do all things and sign all documents to authorise and direct B Lawyers to pay the money held in trust for the husband and the wife to the parties’ joint C Bank account no. …39 (“Joint C Bank Account”).

Other than as provided in these Orders, that neither the husband nor the wife may withdraw any funds from the Joint C Bank Account without the express written consent of the other.

Subject to Order 6, that the husband pay direct to the wife by way of interim spousal maintenance the sum of $701 per week to such bank account as may be nominated by the wife in writing, of which the first payment is to be made within three (3) days of the date of these Orders and each subsequent payment is to be made weekly thereafter.

Subject to Order 6, that within seven (7) days of the date of these Orders, the husband is to pay to the wife or at the wife’s direction the sum of $47,814.91 by way of lump sum spousal maintenance.

Subject to Order 6, that within 28 days of the date of these Orders, the wife receive the following sums by way of interim property settlement and such sums are to be paid from the Joint C Bank Account:

(a) the sum of $143,153 for payment of the wife’s incurred legal costs;

(b) the sum of $58,700 being the balance of the payment required to purchase the motor vehicle 1; and

(c) the sum of $6,930.95 in payment of items 6, 7, 8 and 10 of the wife’s tender bundle tendered in the proceedings on 18 June 2020.

Orders 3, 4 and 5 are subject to the wife providing her consent for the husband to withdraw the amount specified in those Orders from the Joint C Bank Account.

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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