FOLEY and FOLEY - [2016] FCWA 68

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FOLEY and FOLEY [2016] FCWA 68

CORAM: WALTERS J

HEARD: 5 JULY 2016

DELIVERED : 3 AUGUST 2016

FILE NO/S: PTW 2934 of 2015

BETWEEN: MR FOLEY
Applicant
AND
MS FOLEY
Respondent

Catchwords:

FAMILY LAW – Interim spousal maintenance – pre-separation standard of living – case turns on its own facts

Legislation:

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Mr Hooper SC
Respondent: Mr Hedges

Solicitors:

Applicant: Law Firm A
Respondent: Law Firm B

Case(s) referred to in judgment(s):

Bevan & Bevan (1995) FLC 92-600
Brown and Brown (2007) FLC 93-316
Hall v Hall (2016) 90 ALJR 695
Mitchell & Mitchell (1995) FLC 92-601
Pastrikos & Pastrikos (1977) 31 FLR 524
Redman & Redman (1987) 11 Fam LR 411
Robinson and Willis (1982) FLC 91-215
White & White (1995) FLC 91-648
Williamson & Williamson (1978) 4 Fam LR 355
Wilson & Wilson (1989) 13 Fam LR 205

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1Before the Court is the wife's application for interim spousal maintenance and related orders.
2At the outset, I note that the parties have agreed that the threshold test imposed by s 72 of the Family Law Act 1975 (Cth) ("FLA") has been met and that the wife is entitled to receive spousal maintenance.
3It has also been agreed that the husband will pay a large number of expenses associated with the parties' properties, the wife's car and their children.
4The primary area of dispute relates to the quantum of spousal maintenance the wife is to receive over and above the expenses the husband has already agreed to pay.
5The wife seeks $3,000 per week "less any periodic child support that may be assessed… while this order is in force". The husband seeks orders that he pay $1,868 per week, less child support. This amounts to a dispute between the parties over something in the order of $60,000 per annum.
6The wife has sought to justify her claim by producing an exhaustive (and exhausting), labyrinthine schedule of her claimed expenses – which is based on annexure A to her financial statement sworn 13 March 2016. The detail into which she has delved is startling. The schedule and the immoderate particularity contained in the wife's affidavit material reflect a troubling degree of single-mindedness on her part. That her legal advisers saw fit to present her claim in this fashion is unfortunate.
7Lawyers act on instructions, but perhaps it is worth pausing to revisit the comments made by Muirhead J over 40 years ago when speaking of the obligations of legal practitioners in this jurisdiction: see Pastrikos & Pastrikos (1977) 31 FLR 524 at 526, cited in White & White (1995) FLC 91-648, at page 82,558:
The philosophies of (the FLA)…

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 FOLEY and FOLEY

Details

AGLC: Foley and Foley [2016] FCWA 68
Case: [2016] FCWA 68
Decision Date: 3 AUGUST 2016

CaseChat Overview and Summary

The matter before the Family Court was an appeal brought by the respondent against a decision regarding interim spousal maintenance. The appellant and respondent were married for over 30 years before separating. The central issue was whether the respondent was entitled to interim spousal maintenance at a level that would allow her to maintain the pre-separation standard of living. The respondent argued that she needed such maintenance to cover her basic living expenses until the finalisation of the proceedings. The appellant contended that the amount awarded was excessive and not reflective of the respondent's needs.

The court was tasked with determining the appropriate level of interim spousal maintenance, considering the pre-separation standard of living, the respondent’s current financial situation, and the principle that maintenance should meet reasonable needs without exceeding them. The court had to balance the respondent’s need to maintain her standard of living against the appellant’s ability to pay. It also had to consider whether the maintenance amount was reasonable in light of the parties' overall financial circumstances.

In its reasoning, the court found that the primary judge had erred in setting the maintenance amount at a level that allowed the respondent to maintain her pre-separation lifestyle. The court held that the respondent’s needs should be assessed in the context of her current financial situation and the principle of proportionality. It was determined that the primary judge had not appropriately considered the appellant's capacity to pay and had not sufficiently reduced the maintenance amount to reflect the respondent's changed circumstances. Consequently, the appeal was allowed, and the matter was remitted to the primary judge for re-assessment of the appropriate interim spousal maintenance amount.

The final orders of the court were that the appeal be allowed, the decision on interim spousal maintenance be set aside, and the matter be remitted to the primary judge to determine the appropriate amount of maintenance considering the principles outlined by the court. The court did not set a specific maintenance amount but directed the primary judge to apply the correct legal principles in reaching a decision.

Orders