Hall and Hall (No. 3) - [2013] FamCA 975

FAMILY COURT OF AUSTRALIA

HALL & HALL (NO. 3)

[2013] FamCA 975

FAMILY LAW – SPOUSAL MAINTENANCE – interim orders –orders made for the husband to pay a specified amount of spousal maintenance to the wife on a monthly basis in addition to paying the school fees for the children.

Family Law Act 1975 (Cth) s 72, 75, 77, 80

In the Marriage ofMitchell (1995) FLC 92-601

APPLICANT:

Ms Hall

RESPONDENT:

Mr Hall

FILE NUMBER:

ADC

3671

2013

DATE DELIVERED:

10 December 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

9 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr N J Ackman QC (with Mr Werner)

SOLICITOR FOR THE APPLICANT:

Barnes Brinsley & Shaw

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

David Burrell & Co

Orders

Pending final determination of property settlement and spouse maintenance proceedings between the parties:
1.1 Paragraphs 8.1 and 8.3 of the Order of 23 October 2013 are continued.
1.2The husband pay as and when they fall due all school fees for the children of the parties including all associated or related charges or expenses billed by the children’s school to either of the parties.
1.3The husband pay spouse maintenance to the wife in the sum of TEN THOUSAND EIGHT HUNDRED AND THIRTY THREE DOLLARS [$10,833.00] per calendar month commencing on Monday 16 December 2013 and each 16^th day of the month thereafter payable to an account nominated by the wife and provided to the husband’s solicitors in writing by 4.00 pm on Thursday 12 December 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hall & Hall (No. 3) 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 3671 of 2013

Ms Hall

Applicant

And

Mr Hall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is the application for spouse maintenance in the Amended Initiating Application in which the wife sought interim orders both by way of urgent spouse maintenance and by way of interim spouse maintenance, in paragraphs 10, 11 and 12. Paragraphs 11 and 12 each seek the sum of $14,000 per month.
Paragraph 10 relates to the payment of the outgoings in relation to the property in which the wife and children now reside at E Street, Suburb M, in the State of South Australia.
The Initiating Application came on before me for hearing and the husband opposed the orders sought.
At the hearing the wife was represented by Mr Ackman, QC and the husband by Mr Richards. There were previously orders made on 23 October 2013 in which interim orders were made by way of children’s orders and various injunctions. Specifically the parties were directed by order to file Financial Statements to assist the Court in determining the interim maintenance application.
The husband did not file his Financial Statement as ordered by 26 November but instead…

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 Hall and Hall (No. 3)

Details

AGLC: Hall and Hall (No. 3) [2013] FamCA 975
Case: [2013] FamCA 975
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, constituted by Dawe J, considered an application for interim spousal maintenance and urgent spousal maintenance. The applicant, Ms Hall, sought orders for the respondent, Mr Hall, to pay a specified monthly sum for spousal maintenance and to continue paying school fees for the parties' children. Mr Hall opposed these orders.

The primary legal issue before the court was whether Ms Hall had met the initial threshold for spousal maintenance, specifically whether she was unable to support herself adequately. This required the court to consider the grounds for such inability as outlined in section 72 of the *Family Law Act 1975* (Cth), including having the care of a child, age or incapacity for employment, or any other adequate reason, having regard to the matters listed in section 75(2). If this threshold was met, the court also needed to determine if the amount sought was excessive and if Mr Hall had the capacity to pay.

His Honour applied sections 72, 75, 77, and 80 of the *Family Law Act 1975* (Cth). The court found that Ms Hall had established the initial threshold of being unable to support herself adequately, particularly due to her role as the primary caregiver for the children. The court also considered Mr Hall's financial circumstances, noting his failure to file a financial statement as ordered but relying on his affidavit. The court determined that Mr Hall had the capacity to pay the maintenance sought.

The court ordered that the husband pay interim spousal maintenance to the wife in the sum of $10,833.00 per calendar month, commencing on 16 December 2013 and continuing on the 16th of each subsequent month. Additionally, the husband was ordered to pay all school fees for the children of the marriage, including associated charges, as and when they fell due. These orders were to continue pending the final determination of the property settlement and spousal maintenance proceedings.

Orders