Grange & Grange - [2021] FamCA 401

FAMILY COURT OF AUSTRALIA
Grange & Grange [2021] FamCA 401

File number(s): ROC 580 of 2011

Judgment of: HOWARD J

Date of judgment: 18 June 2021

Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE – where the applicant husband failed to prove that he is unable to support himself adequately – where the applicant husband failed to prove that the wife is reasonably able to maintain the husband – application dismissed.

Legislation:
Family Law Act 1975(Cth) ss 72, 74, 75, 79

Evidence Act 1995 (Cth) Part 3.3

Cases cited:
Grange & Grange and Ors [2019] FamCAFC 205

Muschinski v Dodds (1985) 160 CLR 583

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

In the Marriage of Bevan (1993) 19 Fam LR 35

Weir & Weir (1992) 110 FLR 403

Number of paragraphs: 55

Date of last submission/s: 7 May 2021

Date of hearing: 7 May 2021

Place: Brisbane

Counsel for the Applicant: Mr Foley

Solicitor for the Applicant: Ryan Murdoch O’Regan Lawyers

Counsel for the Respondent: Mr Fisher (on a direct brief from the Respondent, Mr. Grange)
ORDERS

ROC 580 of 2011

BETWEEN:
MS GRANGE

Applicant

AND:
MR GRANGE

Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

18 JUNE 2021

THE COURT ORDERS ON A FINAL BASIS:
1.That the Application for spousal maintenance contained in the Amended Response filed 10 February 2020 be dismissed.
2.That in the event that either party intends filing an application for costs – such application shall be filed and served within thirty (30) days of the date of this Order.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Grange has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
Background

In this case, the only issue for determination relates to the husband's application for spousal maintenance. The orders sought by the husband are contained in his Amended Response filed 10 February 2020. The wife had originally sought a property adjustment under s.79 of the Family Law Act 1975 (Cth) (“the Act”). The husband seeks $40,000 “representing arrears of spousal maintenance from 14 November 2011 to the date of this order.” The husband seeks a further order under section 74 of the Family Law Act 1975 (Cth) that the wife pay spousal maintenance to him in the sum of $300 per week. He puts no limit as to how long this amount should be paid to him by the wife. The husband also seeks costs.
The wife seeks that the husband's application for spousal maintenance be dismissed. The wife…

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.

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Details

AGLC: Grange & Grange [2021] FamCA 401
Case: [2021] FamCA 401
Decision Date: 18 June 2021

CaseChat Overview and Summary

In *Grange & Grange*, the applicant husband sought spousal maintenance from the respondent wife. The application was heard by Howard J.

The primary legal issues before the court were whether the applicant husband had proven that he was unable to support himself adequately and whether the respondent wife was reasonably able to maintain the husband.

Howard J dismissed the husband's application for spousal maintenance. The court noted that there was no property available for a property settlement order under section 79 of the Act, as the parties, after approximately 30 years of marriage, had no property. The court observed that the parties had gifted their only asset, a Sales Permit valued at approximately $1 million, to the husband's mother. Applying section 74(1) of the Act, the court concluded that it was not proper to make any order for maintenance in these circumstances.

Orders

Orders of the court

ROC 580 of 2011

BETWEEN:

MS GRANGE

Applicant

AND:

MR GRANGE

Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

18 JUNE 2021

THE COURT ORDERS ON A FINAL BASIS:

1. That the Application for spousal maintenance contained in the Amended Response filed 10 February 2020 be dismissed.

2. That in the event that either party intends filing an application for costs – such application shall be filed and served within thirty (30) days of the date of this Order.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is also particularly noteworthy (whether by reason of section 75(2)(o) or section 75(2)(n)) – that there was no property available for a property settlement order under section 79 of the Act. After approximately 30 years of marriage the parties had no property. It is to be noted that the Full Court concluded that the legal effect of what occurred was that the only property of the parties (the Sales Permit referred to previously) – was gifted by the parties to Ms B Grange – the husband's mother. Those net proceeds were in the approximate sum of $1 million. Conclusion For the reasons stated and noting section 74(1) – the Court has come to the conclusion that it is not proper to make any order for maintenance in this case. The husband's application is dismissed for the reasons contained herein.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	ROC 580 of 2011
Judgment of:	HOWARD J
Date of judgment:	18 June 2021
Catchwords:	FAMILY LAW – SPOUSAL MAINTENANCE – where the applicant husband failed to prove that he is unable to support himself adequately – where the applicant husband failed to prove that the wife is reasonably able to maintain the husband – application dismissed.
Legislation:	Family Law Act 1975(Cth) ss 72, 74, 75, 79 Evidence Act 1995 (Cth) Part 3.3
Cases cited:	Grange & Grange and Ors [2019] FamCAFC 205 Muschinski v Dodds (1985) 160 CLR 583 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 In the Marriage of Bevan (1993) 19 Fam LR 35 Weir & Weir (1992) 110 FLR 403
Number of paragraphs:	55
Date of last submission/s:	7 May 2021
Date of hearing:	7 May 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Foley
Solicitor for the Applicant:	Ryan Murdoch O’Regan Lawyers
Counsel for the Respondent:	Mr Fisher (on a direct brief from the Respondent, Mr. Grange)

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	18 JUNE 2021