Filmer and Filmer - [2013] FamCA 279

FAMILY COURT OF AUSTRALIA

FILMER & FILMER

[2013] FamCA 279

FAMILY LAW – SPOUSAL MAINTENANCE – interim orders – application by the husband seeking that previous orders for spousal maintenance be discharged or alternatively, be varied – where the wife seeks that the amount of spousal maintenance be increased – consideration of the parties’ financial situations – orders made increasing the amount of spousal maintenance to be paid by the husband.

Family Law Act 1975 (Cth) s 72, 74, 75, 80, 83

Caska v Caska (1998) FLC 92-826

APPLICANT:

Mr Filmer

RESPONDENT:

Ms Filmer

FILE NUMBER:

ADC

3244

2010

DATE DELIVERED:

1 May 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

11 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Howe Martin & Associates

COUNSEL FOR THE RESPONDENT:

Mr Berman, SC

SOLICITOR FOR THE RESPONDENT:

David Burrell & Co

Orders

Paragraphs 1(b) and (c) of the Consent Order of 21 December 2011 are discharged.
The husband shall pay spousal maintenance for the wife in the sum of ONE THOUSAND TWO HUNDRED AND FIFTY DOLLAR [$1,250.00] per week commencing and backdated to 1 January 2013.
Further consideration of the enforcement orders sought by the wife in paragraphs 3 and 4 of the amended Response filed on 27 November 2012 is adjourned to the final hearing of the proceedings.
The Application in a Case filed by the husband on 5 July 2012 is dismissed.
The question of costs is reserved to a date to be fixed should the parties be unable to reach agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Filmer & Filmer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3244 of 2010

Mr Filmer

Applicant

And

Ms Filmer

Respondent

REASONS FOR JUDGMENT

Introduction

The wife Ms Filmer (“the wife”) seeks interim orders in relation to spousal maintenance. The Application in a Case filed by the husband Mr Filmer (“the husband”) on 5 July 2012 sought the discharge of a Consent Order or variation of that order. Subsequently, the wife has filed further orders sought in her Amended Response filed on 27 November 2012.

The Hearing

At the hearing before the Court on 11 December 2012 the husband was represented by Mr McQuade of Counsel and the wife by Mr Berman, SC of Counsel.
After detailed submissions judgment was reserved.

Relevant Background

The wife was born in 1958. She is now aged 54. She describes her occupation as “home duties”.
The husband was born in 1955 and is now aged 57. He is employed in the financial industry.
The parties married in February 1981 and separated in April 2010. There are three children of the marriage now adults.
Proceedings commenced in August 2010 when the wife filed an Initiating Application seeking property settlement and spousal maintenance. The husband responded. In February 2011 both…

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 Filmer and Filmer

Details

AGLC: Filmer and Filmer [2013] FamCA 279
Case: [2013] FamCA 279
Decision Date

CaseChat Overview and Summary

In *Filmer & Filmer*, the Family Court of Australia considered an application by the husband seeking to discharge or vary previous consent orders for spousal maintenance, while the wife sought an increase in the amount of spousal maintenance payable by the husband. The parties, married in 1981 and separated in 2010, had adult children. The wife, aged 54 and describing her occupation as "home duties," sought interim orders, while the husband, aged 57 and employed in the financial industry, sought to reduce his maintenance obligations.

The central legal issues before the Court were whether the existing spousal maintenance orders should be discharged or varied, and if varied, to what extent. This involved a consideration of the parties' respective financial situations, their ages and health, their capacities for gainful employment, and their financial commitments and responsibilities, as stipulated by sections 72, 74, and 75 of the *Family Law Act 1975* (Cth). The Court also had to determine the wife's ability to support herself adequately and the husband's reasonable ability to pay maintenance.

The Court reasoned that the wife was unable to support herself adequately, a prerequisite for spousal maintenance under section 72 of the Act. While the husband sought to discharge or vary the existing orders, the evidence presented indicated a need for continued maintenance. The Court considered the financial circumstances of both parties, noting the wife's reliance on maintenance and the husband's employment. Ultimately, the Court found it appropriate to increase the spousal maintenance payable by the husband.

The Court ordered that the husband pay spousal maintenance to the wife in the sum of $1,250 per week, backdated to 1 January 2013. The husband's application to discharge or vary the previous orders was dismissed. Further consideration of enforcement orders sought by the wife was adjourned to a final hearing, and the question of costs was reserved.

Orders