Denning & Denning (No 2)

[2011] FamCA 49

FAMILY COURT OF AUSTRALIA

DENNING & DENNING (NO. 2) [2011] FamCA 49

FAMILY LAW – SPOUSAL MAINTENANCE – Application filed during hearing for periodic spousal maintenance and child support – Previous application filed for lump sum spousal maintenance – Property and financial proceedings part-heard – Wife permitted to file application for periodic spousal maintenance only – Hearing continued

Family Law Act 1975 (Cth) s 44(3) – s 72 – s 74 and s 79

APPLICANT: MR DENNING

RESPONDENT: MS DENNING

INTERVENOR: ASK FUNDING LIMITED (ACN 094 503 385)

FILE NUMBER: MLC 463 of 2008

DATE DELIVERED: 1 FEBRUARY 2011

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 1 FEBRUARY 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr McConchie

SOLICITOR FOR THE RESPONDENT: F BUTERA & CO

COUNSEL FOR THE INTERVENOR: Mr Crozier-Durham RFD

SOLICITOR FOR THE INTERVENOR: MASON SIER TURNBULL

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 463 of 2008

MR DENNING

Applicant

And

MS DENNING

Respondent

And

ASK FUNDING LIMITED (ACN 094 503 385)
Intervenor

REASONS FOR JUDGMENT

1. At the commencement of proceedings today an application was made by counsel for the wife seeking to file an amended response to the application for final orders now before the Court.  What was proposed is that additional orders be filed and the Court be asked to deal, on the evidence now before it, with these extended applications.  The first application is that the husband pay periodic spousal maintenance in the sum of $300 per week to the wife.  The second application is that the husband pay child maintenance in the sum of $150 per week for the only child of the marriage.

2. The background to the application is that by her initial response filed 2 March 2009, in order 20 thereof, the wife had sought orders for a lump sum cash payment by way of spousal maintenance. Mr McConchie rightly highlighted that that order was sought at a time when it was envisaged that the matrimonial pool of assets available for division under section 79 of the Family Law Act 1975 would be considerable, he estimated in the millions of dollars.  The reality is now somewhat different.

3. The husband opposed any amendment by way of granting leave at this late stage to seek spousal maintenance and further opposed any weekly payment to the wife.  Likewise he opposed any child maintenance order predicated on the basis that he currently pays and has promised to the Court he would continue to pay for his daughter of this marriage all ongoing school fees and related school expenses and clothing, both for school and generally, and additionally take his daughter on holidays and spend other moneys on her.  The current child support assessment is $98 per calendar month.  That is not being paid and there are some $4,000 in arrears already accumulated.  That, then, is the background to both applications.

4. There has been every opportunity to the wife and her legal advisers to file that application for spousal maintenance prior to this day.  I am, however, conscious that spousal maintenance was sought as at 2 March 2009, albeit on a lump-sum basis, and in these brief ex tempore reasons for judgment delivered without rising from the Bench I do not find section 44(3) of the Act as being a hurdle to the wife.  That is because spousal maintenance was sought previously and the strict compliance with the time limits imposed by that section have been satisfied.

5. The evidence in this case is at the stage that the husband, as applicant, has presented his affidavit material to the Court, has given evidence and has been cross-examined by Counsel for the wife.  He is about to be cross-examined by Counsel for the intervenor. 

6. The Court’s powers of maintenance are provided in sections 72 and 74 of the Family Law Act. The Court may make such order as it considers proper for maintenance subject to all of the evidence. Particularly it is provided in section 72 that:

   “A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able so to do ... and only if, that other party is unable to support ... herself.“

   for the reasons identified therein.

7. What is currently before me is a division of property matter pursuant to section 79 of the Family Law Act. The matters to be taken into account are identified in subsection (4) thereof and include (e) thereof, which directs the Court to have regard to the provisions of section 75(2) insofar as they are of relevance. Within section 75(2) the Court is required to have regard to the duration of the marriage and the extent to which it has affected the earning capacity of any party whose maintenance may be under consideration. The Court is also empowered by subsection (j) thereof to have regard to the earning capacity, property and financial resources of the other party, that is, the husband, in determining a just and equitable division of property.

8. The reality is that the financial circumstances of the husband are relevant within the ambit of the property application before the Court.  They are matters that the Court would consider in determining a just and equitable division of property but perhaps are more pointed if there remains a spousal maintenance application before the Court. 

9. On balance I conclude there is no real or particular disadvantage to the husband.  His evidence has been given.  The outcome of any order will be as a result of his capacity to pay.  There is therefore no further delay or documents to be filed.  The opposition of the husband to maintenance is clear and well demonstrated to the Court.

10. Mr Crozier-Durham, on behalf of the intervenor, has opposed any amendment to the current application and therefore opposed leave being granted to Counsel for the wife to make any such application to amend the current order sought.  On balance what is not sought is a lump sum provision for maintenance which could have had the impact of disadvantaging the claim of the intervenor before the Court.  Given that it is a periodic amendment sought, and given that it will be resolved on the evidence already before the Court, I conclude on the balance of justice and equity and dealing with all parties appropriately, and notwithstanding the unacceptable delay and lack of foresight on the part of the legal practitioners for the wife, I find it is appropriate to grant leave restricted only to periodic maintenance for the wife.

11. I will not grant leave as sought on the basis of any application for child maintenance for reasons that have been apparent from the discussions with counsel, primarily the lack of jurisdiction of the Court and the current child support assessment. There is a proper process to be followed in relation to that child support assessment, and that remains valid. 

12. Accordingly I will allow a discrete application to be redrawn overnight and to be filed tomorrow morning where the only order sought therein will be periodic spousal maintenance to be paid by the husband to the wife and fixed in the sum of $300 per week.

13. I emphasise that is the application.  The payment and quantum, if any, of any spousal maintenance will be determined by me in the hearing.  I will return this draft document to the wife’s Counsel now and it can be redrawn as to that one issue and submitted to the Court for approval in the morning and then filing.  I will have these brief ex tempore reasons for judgement transcribed and placed upon the Court file when settled by me and made available to all parties. 

I certify that the preceding thirteen
(13) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 1 February 2011

Associate: ……………………………………………………………

Date:  …………………………………………………………………