FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fannon & Salzer (No 2) [2024] FedCFamC2F 406
File number: MLC 13379 of 2022 Judgment of: JUDGE BLAKE Date of judgment: 3 April 2024 Catchwords: FAMILY LAW – Interim spousal maintenance – where wife on parental leave following birth of child with new partner – where wife previously worked – whether husband should be required to pay spousal maintenance where the wife is not working because of decisions she made – HELD other adequate reasons exist for why the wife is unable to adequately support herself.
FAMILY LAW – Interim spousal maintenance – where the wife will shortly receive paid parental leave payments under the Paid Parental Leave Act 2010 (Cth) (‘PPL payments’) – whether PPL payments are an ‘income tested pension, allowance or benefit’ for the purposes of section 75(3) of the Family Law Act 1975 (Cth) – HELD payments under the Paid Parental Leave Act 2010 (Cth) are not income tested pensions, allowances or benefits and must be taken into account.
FAMILY LAW – Interim spousal maintenance – relevance of child support payment and children’s expenses to an application for spousal maintenance – where such payments and expenses are excluded from assessment.
FAMILY LAW – Interim spousal maintenance – where wife’s new partner is making contributions for the benefit of their child – where such payments are voluntary and irregular – where no submission put that wife and new partner are in de facto relationship – whether such payments are likely to continue – what quantum of these payments is being used for the expenses of the child of the wife and the new partner.
FAMILY LAW – Interim spousal maintenance – where there are three distinct periods covering the application including when the wife is on unpaid parental leave, when she is in receipt of PPL payments and what happens when the PPL payments end – different maintenance orders considered in relation to each period.
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 17, 117, 124, 125.
Family Law Act 1975 (Cth) ss 4(1), 72, 72(1), 72(1)(a), 72(1)(b), 74, 75(2), 75(2)(b), 75(2)(d), 75(2)(f), 75(2)(j), 75(2)(l), 75(2)(na), 75(2)(o), 75(3).
Paid Parental Leave Act 2010 (Cth).
Social Security Act 1991 (Cth) ss 18, 23(1), 1068A, 1068B.
Social Security Legislation Amendment (Parenting and Other Measures) Act 1997 (Cth) sch 1, items 310, 311.
Family Law Regulations 1984 (Cth) reg 12A.
Federal Circuit and Family Law (Family Law) Rules 2021 (Cth).
Cases cited: Carson & Hillman [2019] FamCAFC 42
In the Marriage of Bevan (1993) 120 FLR 283
In the Marriage of Patterson (1979) FLC 90-705
Jabara & Gaber [2021] FedCFamC1A 26
Kensit & Kensit [2022] FedCFamC1F 633
MS & PS (2006) FLC 93-268
Stein v Stein (2000) 25 Fam LR 727
Division: Division 2 Family Law Number of paragraphs: 119 Date of hearing: 13 March 2024 Place: Melbourne Counsel for the Applicant: Ms Renwick Solicitor for the Applicant: Barry Nilsson Lawyers Counsel for the Respondent: Mr Dickson KC Solicitor…
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- AGLC
- Fannon & Salzer (No 2) [2024] FedCFamC2F 406
- Case
- [2024] FedCFamC2F 406
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the husband should be required to pay spousal maintenance to the wife given her decision to be on parental leave. The court also needed to determine if PPL payments were to be considered as income-tested pensions, allowances, or benefits for the purposes of section 75(3) of the Family Law Act 1975 (Cth). Additionally, the court had to assess the relevance of the child support payments and children’s expenses to the application for spousal maintenance. The court further considered the payments made by the wife's new partner for the benefit of their child and the potential continuation of these payments.
The court held that other adequate reasons existed for why the wife was unable to adequately support herself, and hence, spousal maintenance should be paid. It was determined that PPL payments were not income-tested pensions, allowances, or benefits and must be taken into account. Child support payments and children’s expenses were excluded from the assessment of spousal maintenance. The court also considered the voluntary and irregular payments made by the wife’s new partner, concluding that these payments were not likely to continue and did not significantly affect the spousal maintenance calculation. The court established different maintenance orders for the distinct periods covering the application, including when the wife was on unpaid parental leave, when she was in receipt of PPL payments, and what happens when the PPL payments end.
The court ordered the husband to pay interim spousal maintenance to the wife, with different amounts for each period as outlined in the orders. The husband was also required to pay child support and contribute to the children’s educational and extra-curricular expenses, as well as private health insurance premiums. The court further ordered a partial property settlement and specified the distribution of trust income. The wife was mandated to notify the husband in writing when she commenced and ceased receiving PPL payments.
Orders
Orders of the court
MLC 13379 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS FANNON
Applicant
AND:
MR SALZER
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
3 APRIL 2024
THE COURT ORDERS BY CONSENT THAT:
1. Pending further order, and pursuant to, section 117 of the Child Support (Assessment) Act 1989 (Cth) (‘the CSA Act’), there be and is hereby a departure from the administrative assessment of child support payable by the husband to the wife for the children:
(a) X, born in 2018; and
(b) Y, born in 2021;
such that the husband must pay the wife by way of periodic child support, $100 per child, per week, payable by monthly instalments, the first payment to be made on the first day of the first calendar month after the making of this order, and thereafter, by the first day of each calendar month.
2. Pending further order, and pursuant to, inter alia, section 124 of the CSA Act, the husband must pay, or cause to be paid, non-periodic child support to the wife for the children by way of payment of 100% of the children’s:
(a) educational expenses including but not limited to tuition fees, school uniforms, information technology expenses, books, and stationery;
(b) extra-curricular activity expenses including but not limited to class fees, registration fees, uniform fees, and competition fees; and
(c) private health insurance premiums at the current or better level and which are due and payable from time to time;
3. For the purposes of Order 2 herein, the husband must:
(a) pay all such expenses to the relevant provider within 7 days of receiving an invoice from the wife or the provider; or
(b) reimburse the wife if she has paid such expense at first instance within 7 days of receiving an invoice from the wife by making such payment into a bank account nominated by her.
4. The payments referred to in Order 2 are not to be credited against any administrative assessment for child support for which the husband is responsible for payment, and for the purposes of section 125 of the CSA Act, such payments will not reduce the administrative assessment for child support.
5. Within 28 days of these Orders, the parties do all such acts and sign all such documents as may be required to amend the minute of meeting for the Salzer Family Trust in respect to the distribution of the Trust income of the Salzer Family Trust for the 2021/2022 financial year to state that $80,000 currently distributed to the wife, be distributed as directed by the husband.
THE COURT ORDERS THAT:
6. The husband pay to the wife $340,000 by way of partial property settlement as follows:
(a) $90,000 within 7 days of the date of these Orders; and
(b) the balance of $250,000 within 45 days of the date of these Orders.
7. In the event that the whole of the payment referred to in Order 6 above has not been made on or before 45 days from the date of these Orders, the property at B Street, Suburb C (‘Suburb C’) shall be sold altogether out of Court and the husband shall have control of the sale.
8. Any amount outstanding to the wife pursuant to Order 6 shall be paid from the Suburb C settlement proceeds.
9. Pursuant to section 74 of the Family Law Act 1975 (Cth), the husband pay interim spousal maintenance to the wife, by way of payment to the wife’s nominated bank account:
(a) from the date of these Orders until the wife commences receipt of Paid Parental Leave Payments under the Paid Parental Leave Act 2010 (Cth) (‘PPL Payments’), an amount of $884 per week; and
(b) from the time the wife commences to receive the PPL payments until she ceases to receive the PPL payments, an amount of $123 per week.
10. The wife immediately notify the husband in writing when she commences to receive PPL payments.
11. The wife immediately notify the husband in writing when she ceases to receive PPL payments.
AND THE COURT NOTES THAT:
A. Order 5 above was consented to on the basis that the husband would retain the amount of $80,000 (net of tax) in the asset pool, and that this amount would not be paid to the wife.
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.
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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