Dunn & Dunn (No 3) - [2022] FedCFamC1F 172

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dunn & Dunn (No 3) [2022] FedCFamC1F 172

File number(s): ADC 5380 of 2020

Judgment of: BERMAN J

Date of judgment: 22 March 2022

Catchwords: FAMILY LAW – ORDERS – Discharge – Application to suspend or vary interim spousal maintenance order – Where the husband is currently in arrears – Where the wife obtained part-time employment for a short period – Where the wife resigned due to the stress of the litigation, health concerns and wanting to care for the children – Where the gateway test is not satisfied to the extent of the wife’s employment – Consideration of each parties’ financial circumstances – Where the wife has established an entitlement and the husband has capacity to meet the sum – Application dismissed.

Legislation: Family Law Act 1975 (Cth) s 72(1)

Cases cited:
Brown & Brown (2007) FLC 93-316

Hall & Hall (2016) 257 CLR 490

Maroney & Maroney [2009] FamCAFC 45

Stein & Stein (2000) FLC 93-004

Division: Division 1 First Instance

Number of paragraphs: 71

Date of hearing: 28 February 2022

Place: Adelaide

Counsel for the Applicant: Mr Anderson

Solicitor for the Applicant: Clelands Lawyers Adelaide Pty Ltd

Counsel for the Respondent: Mr McQuade

Solicitor for the Respondent: Jordan & Fowler Family Lawyers
ORDERS

ADC 5380 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DUNN
Applicant

AND:
MR DUNN
Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

22 MARCH 2022

THE COURT ORDERS THAT:
1.The Amended Response to an Amended Application in a Proceeding filed 7 December 2021 seeking to discharge the order for spousal maintenance made 17 March 2021 is dismissed.

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 Dunn & Dunn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

Ms Dunn (“the applicant”) and Mr Dunn (“the respondent”) remain unable to resolve their differences as to the future parenting arrangements for X born in 2015 and Y born in 2018 (collectively “the children”). The parties also remain in dispute in respect of settlement of property.
The proceedings had been listed for final hearing on 16 May 2022. By order made on 28 February 2022, the proceedings were bifurcated such that only the parenting proceedings remain listed for…

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 Dunn & Dunn (No 3)

Details

AGLC: Dunn & Dunn (No 3) [2022] FedCFamC1F 172
Case: [2022] FedCFamC1F 172
Decision Date

CaseChat Overview and Summary

Dunn & Dunn (No 3) involved a dispute between the parties regarding compliance with a spousal maintenance order. The matter was heard in the Family Court of Australia. The central issue before the court was whether the respondent had failed to comply with the spousal maintenance order made in March 2021 and, if so, what consequences flowed from that non-compliance. The applicant contended that the respondent had not made the ordered payments in full since December 2021 and that she was still experiencing a weekly shortfall in her income despite her part-time employment and the spousal maintenance order. The court needed to determine whether the applicant had made reasonable efforts to secure employment and whether the respondent’s failure to comply with the spousal maintenance order was justified.

The court examined the evidence provided by the parties, including the applicant's affidavit and the nature of her employment. The court found that the applicant had secured part-time employment with a weekly net income of $750.39, which, when combined with the spousal maintenance order of $1,500, did not cover her weekly expenses. The court also noted the applicant's agreement to contribute $700 per week towards her legal costs. After considering the evidence, the court concluded that the applicant had not made reasonable efforts to secure further employment. The court held that the respondent's failure to comply with the spousal maintenance order was not justified, and ordered the respondent to make up the arrears and future payments in accordance with the original order.

In light of the findings, the court made orders for the respondent to pay the arrears and future spousal maintenance payments as per the original order. The court also considered the implications of the applicant's financial situation and the necessity for her to continue contributing towards her legal costs. The court's decision emphasised the importance of both parties adhering to court orders and the need for the applicant to take reasonable steps to secure employment to meet her financial obligations.

Orders

Orders of the court

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Background

Background to the litigation

It is agreed that since 10 December 2021, the respondent has not complied in full with the spousal maintenance order made on 17 March 2021 and as at 14 February 2022, is currently $9,850 in arrears.BACKGROUND Paragraphs 67 to 76 inclusive of the applicant’s affidavit filed 28 September 2021, disclosed that on 28 June 2021 the applicant had gained part-time employment (0.6 FTE) as a manager for a commercial property in W Town (“the commercial property”). The standard work hours were 9.00 am to 5.00 pm on each Monday, Wednesday and Thursday. Paragraph 68 provides a summary of the children’s care arrangements consequent upon the applicant’s employment:My new employment has had minimal impact on the care arrangements for the children. X is at school while I am at work and Y attends child care on Mondays and spends Wednesdays and Thursdays with the maternal grandparents, who also have the children’s cousins in their care on those days. The maternal grandparents are both retired school teachers and do not have any difficulty caring for multiple children. The annual salary to be received by the applicant was $45,000 ($75,000 pro rata) and her net weekly pay was $750.39. Notwithstanding the income received by the applicant, it was her contention that even bringing to account the spousal maintenance order of $1,500, there was still a weekly shortfall by way of expenses exceeding her income. The applicant also advised that she had agreed with her lawyers that she would contribute $700 per week towards her legal costs in order that her solicitors would continue to represent her. It is a feature of the arrangements between the parties that the applicant would not seek a child support assessment and accordingly, the current payment made by the respondent includes a component relating to the children’s expenses whilst in the applicant’s care. Whilst in an application for spousal maintenance it is ordinarily necessary to distinguish between the expenses of a spouse seeking an order for spousal maintenance and the expenses of the children of the marriage or relationship, I propose to treat the children’s expenses as the necessary expenses of the applicant until such time as a child support assessment is sought and a determination of child support payable is made.[1] [1] Stein & Stein (2000) FLC 93-004. It is not controversial that the applicant is not in control of any of the property of the parties. There have been orders by way of partial property settlement and litigation funding but I am satisfied that any money received by the applicant have been paid to her solicitors. The applicant concedes that the only employment that she applied for was with the commercial property in W Town. The applicant was assisted by a recruitment agent who also is a friend. The applicant did not apply for any other employment leading up to her successful application with the commercial property in W Town and it is acknowledged by her that there has not been any subsequent applications for employment.

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):	ADC 5380 of 2020
Judgment of:	BERMAN J
Date of judgment:	22 March 2022
Catchwords:	FAMILY LAW – ORDERS – Discharge – Application to suspend or vary interim spousal maintenance order – Where the husband is currently in arrears – Where the wife obtained part-time employment for a short period – Where the wife resigned due to the stress of the litigation, health concerns and wanting to care for the children – Where the gateway test is not satisfied to the extent of the wife’s employment – Consideration of each parties’ financial circumstances – Where the wife has established an entitlement and the husband has capacity to meet the sum – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) s 72(1)
Cases cited:	Brown & Brown (2007) FLC 93-316 Hall & Hall (2016) 257 CLR 490 Maroney & Maroney [2009] FamCAFC 45 Stein & Stein (2000) FLC 93-004
Division:	Division 1 First Instance
Number of paragraphs:	71
Date of hearing:	28 February 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Anderson
Solicitor for the Applicant:	Clelands Lawyers Adelaide Pty Ltd
Counsel for the Respondent:	Mr McQuade
Solicitor for the Respondent:	Jordan & Fowler Family Lawyers

ADC 5380 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS DUNN Applicant
AND:	MR DUNN Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	22 MARCH 2022