Hyde & Bergsma
[2025] FedCFamC2F 270
•3 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hyde & Bergsma [2025] FedCFamC2F 270
File number(s): PAC 4655 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 3 March 2025 Catchwords: FAMILY LAW – DE-FACTO RELATIONSHIP – INTERIM MAINTENANCE – Whether applicant can adequately support herself – Capacity to meet an order for maintenance Legislation: Family Law Act 1975 (Cth) ss 90SE, 90SM, 90SS Cases cited: Bain v Bain (2017) 319 FLR 119
Brown & Brown [2007] FamCA 151
Collingridge & Aiolfi [2019] FamCAFC 88
Hanas & Jolaha (No. 4) [2019] FamCA 483
Maroney & Maroney [2009] FamCAFC 45
Saxena and Saxena [2006] FamCA 588; (2006) FLC 93-268
Division: Division 2 Family Law Number of paragraphs: 92 Date of hearing: 24 February 2025 Place: Parramatta Counsel for the Applicant: Mr Fowler Solicitor for the Applicant: Hikma Legal Counsel for the Respondent: Mr Fermanis Solicitor for the Respondent: Giles Payne & Co Appearing for the Independent Children's Lawyer: Submitting ORDERS
PAC 4655 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HYDE
Applicant
AND: MR BERGSMA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
3 MARCH 2025
THE COURT ORDERS THAT:
1.Pending further order and pursuant to s 90SE of the Family Law Act 1975 (Cth), the respondent pay to the applicant by way of periodic spousal maintenance the sum of $1270 per week, payable by way of electronic funds transfer each Wednesday, commencing 5 March 2025.
2.If the respondent is in default of Order 1 herein or Order 1 of the orders of 24 February 2025, the respondent is to, within 90 days of the date of this order, do all acts and things and sign all documents required to list for sale and thereafter to sell the property at 1 C Street, Suburb D (‘the property’) in accordance with the following conditions:
(a)The respondent shall keep the applicant informed at all times of all matters relating to the listing, marketing, and attempted sale of the property and shall direct the real estate agent and the solicitor or conveyancer and, if any, the auctioneer, to provide to the applicant all relevant information about the property and its sale.
(b)The respondent shall list the property for sale with a licensed real estate agent as agreed by the applicant and the respondent and in default of agreement within 35 days from the date of
these ordersdefault the applicant shall nominate three real estate agents, and the respondent shall select one of those agents who will be the agent engaged to sell the property. If the respondent fails to select an agent from the applicant’s list within 7 days of that list being sent to him or his solicitor, then the applicant may select the agent.(c)That the parties jointly instruct a solicitor to act on the sale of the property and in default of agreement as to the solicitor to be engaged within 35 days from the date of
these ordersdefault the applicant shall nominate three solicitors, and the respondent shall select one of those solicitors who will be the solicitor engaged to act for the vendor on the sale of the property. If the respondent fails to select a solicitor from the applicant’s list within 7 days of that list being sent to him or his solicitor, then the applicant may select the solicitor.(d)That the parties list the property at a price agreed on by them and failing agreement at such price determined to be the then fair market value of the property by E Company and the costs of such valuation shall be paid by the respondent.
(e)If Contract for Sale of the property by private treaty have not been exchanged within 1 month from the date the property was placed on the market for sale then the parties will cause the property to be listed for sale by way of public auction on a date determined by the agent.
(f)If listed for sale by way of public auction, a reserve price shall be fixed by agreement between the parties and failing agreement the reserve price will be determined by E Company and the costs of such valuation shall be paid by the respondent.
(g)If the property is not sold at the auction, or by private negotiation within 14 days after the auction, then the parties shall do all acts and things and sign all documents as may be required to offer the property for sale by private treaty and, at the request of either party, shall offer the property for sale by further public auction, upon the terms set out above save as to the reserve price of the property which, in default of agreement between the parties, shall be 5% below the reserve price at the prior auction, on such further date as may be recommended by the agent.
(h)If the property is not sold at the second auction, or by private negotiation within 14 days after the second auction, then the parties shall continue to comply with the previous subparagraph until the property is sold.
(i)That upon the sale of the property the parties shall do all acts and things necessary to cause the proceeds of the sale to be paid and distributed in the following manner and priority:
(i)Payment of the legal costs, real estate agent’s commission and expenses (including advertising expenses), and auction costs in relation to the sale;
(ii)Rate adjustments as between the vendor and purchaser;
(iii)Discharge of the mortgage secured against the property;
(iv)Payment to the applicant in the amount of $66,040 by way of lump sum maintenance less any amount of weekly maintenance paid to date;
(v)Payment to the applicant in the amount of $100,000 in satisfaction of Order 1 of 24 February 2025; and
(vi)Payment of the balance into a trust account to be held by the applicant’s solicitors pending court order or written agreement of the parties as to its distribution.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
On 11 November 2024, a registrar of this Court set down for interim hearing the applicant’s interim application as contained in her Application in a Proceeding filed 9 September 2024.
That interim application sought orders for ‘litigation funding’ in the amount of $100,000, this being an interim costs application, or in the alternative, an order for ‘partial property settlement’ in the amount of $100,000. Secondly, the application sought an order for spousal maintenance pursuant to ss 72, 74 and 75 of the Family Law Act 1975 (Cth), even though the parties have never been married and the Court had already made a declaration pursuant to s 90SD of the Act. Thirdly, the application sought an order for financial disclosure in respect of a list of ‘outstanding financial disclosure’ yet to be provided. Further, the applicant sought orders that, if the respondent is ‘unable to pay the sum of $100,000’ then he is to ‘cause the sale of his Cryptocurrency’ and pay the proceeds of sale to the applicant, and that if this was not sufficient to satisfy the order for litigation funding, then to cause the sale of the property located at 2 C Street, Suburb D.
While the Federal Circuit and Family Court of Australia (Division 2) is not a court of strict pleading, and proceedings are generally to be conducted with as little formality and legal technicality and form as possible, it is still necessary that applications which are prepared and filed are precise and that the orders which are sought are not only capable of being made, but are capable of being enforced. It does little service to the parties and it is of little assistance to the Court when loosely worded documents are prepared and filed by lawyers.
The Court’s jurisdiction ought to be properly evoked and its powers properly reflected in the form of order sought, notwithstanding that the Court is to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible. Near enough should not be good enough. Loosely worded applications are liable to be summarily dismissed.
As part of the Case Outline Document which was filed on 17 February 2025, the applicant included a Minute of Order which was more precise and cured the most blatant problems identified earlier, namely it no longer sought maintenance pursuant to ss 72, 74, and 75 of the Act, but rather identified the sections in the Act which gave the Court power to make an order for maintenance of a de-facto spouse.
A further Minute of Order was handed up at the commencement of the hearing, which was meant to provide further clarity to the orders sought.
That application was later amended pursuant to an oral application for leave to do so.
However, the orders which were sought by the applicant were still that ‘if the respondent is unable to pay the sum of $100,000’ then he is to do all things to cause the sale of his cryptocurrency. Apart from the fact that the cryptocurrency was sold on an unknown date, as disclosed in the respondent’s Financial Statement filed months before the preparation of the Case Outline Document and the Minute of Order handed up at the hearing, an event described as an inability to pay, is sufficiently vague so as to likely be unenforceable. If it is proposed as a mechanism for the satisfaction of the payment of a sum pursuant to a Court order in respect of which the respondent may default, it should be so clear.
The respondent’s Response to an Application in a Proceeding, filed 25 November 2024, was amended pursuant to an oral application made on the day of the hearing. The respondent moved the Court that within 90 days he pay the applicant the sum of $100,000 by way of a partial property adjustment order.
Following discussions between the parties, and the Bench and the parties, and subsequent to some financial disclosure which had only occurred in the space of the last week, the issues before the Court for interim determination were significantly narrowed, with the applicant no longer pressing any order for litigation funding and agreeing to payment of $100,000 by way of partial property adjustment order within 90 days. The application for financial disclosure was not pressed. What remained for determination were the applicant’s maintenance application, and the orders as to the sale of a property to fund both the order for partial property distribution and/or any order for lump sum maintenance.
FINDINGS AND EVIDENCE
On 9 October 2023, the Court declared that a de-facto relationship existed between the parties and that X (‘X’), born in 2019, is a child of the parties’ relationship.
The parties disagree as to when the de-facto relationship commenced and ended.
The Applicant’s Evidence
The applicant asserts that the parties commenced a relationship in early 2015, that they started living together in July 2015, and were married in a religious ceremony in 2017 but did not register their marriage. The applicant said they separated on 2 November 2021 after she and X left the matrimonial home.
At the commencement of the relationship, the applicant said that she had no liabilities, and her assets were $35,000 by way of an inheritance, and Motor Vehicle 1 with an estimated value of $10,000 which was paid out following damage for the sum of $8,638.
Between August and October 2017, the applicant says she worked full-time as a customer service officer for F Company.
In or around early 2017, the applicant started assisting the respondent in a sales business but was not renumerated for the first year. In 2018 the applicant says the respondent would pay her 20% of the profit for the sale of each item, that the respondent sold between 5 and 10 items a week, that she was mostly paid in cash, and it was rare for the respondent to transfer the money directly to her. The applicant asserted that, during the periods she left the matrimonial home, the respondent stopped paying her commission, and that the payments completely stopped following their separation in November 2021.
Throughout the relationship, the applicant stated she was responsible for purchasing groceries and personal items for herself and the child, and that the respondent paid the bills, rent, and general housekeeping expenses.
In mid-2020, the applicant stated that they purchased the property at G Street, Suburb H for approximately $916,000, and that it was purchased in the respondent’s sole name.
In or around August 2020, the applicant stated that they separated temporarily, that she applied for Centrelink single parent pension, was approved, and that she started receiving fortnightly payments.
In March 2021, the applicant stated that the respondent told her they would have a joint account, that she agreed, and that she transferred $80,000 into the home loan account at $10,000 each day. The applicant claimed that the account was never in her name, and that the respondent simply allowed her to view the account. It would seem that this money was repaid by the respondent in May 2021.
On or around 10 November 2021, after leaving the matrimonial home, the applicant asserted that the respondent approached her and said words to the effect ‘[t]ake this credit card and use it for [X]’s expenses.’ The applicant claimed she used the card for X’s speech therapy while she waited for the NDIS funding. The applicant also stated that the respondent cancelled her access to his credit card on or about December 2021, reinstated the card in February 2022 before cancelling it again around June 2022. The applicant says that since June 2022, the respondent has not contributed to the care of the child.
The applicant’s evidence is that she is unemployed and does not have the capacity to find employment as she is X’s sole carer. Even though X is now attending school, she is on standby during the school day in case she needs to collect him. The applicant also claimed, in respect of her current circumstances, the following:
(a)That the maternal grandmother was assisting her by providing $50 each week, that this increased to $150 each fortnight from 19 September 2024, and that she owed the maternal grandmother $3,690;
(b)That she had borrowed $3,800 from her brother, Mr J, for day-to-day living expenses;
(c)In around early 2023, she traded in Motor Vehicle 2 for Motor Vehicle 3 and was paid $14,500 which she applied to her day-to-day living expenses;
(d)She is meeting the cost of $35 per week for her studies in a course;
(e)That her weekly expenditure is $1,398, but expects this to increase to $1,648 once she moves out of her current rental property;
(f)That she pays $400 per week in rent, that her lease agreement is month-to-month, and that she intends to move out and find a more spacious rental property;
(g)That the entirety of the $50,000 transferred to her solicitor’s trust account pursuant to orders dated 4 March 2024 was applied to outstanding legal fees, and that there remains $31,422.42 remaining in outstanding fees; and
(h)That she does not receive child support payments from the respondent.
The Court further notes the matters set out in the applicant’s Financial Statement filed 9 September 2024.
The applicant asserts that X’s medical professionals have advised for him to engage with a specialist with the appointment costing $500, another specialist with the appointment costing $500, and a follow-up paediatrician appointment costing $475. The applicant stated she is unable to afford the appointments, and that she has asked for assistance from the maternal grandmother who has agreed to lend her $250 per fortnight towards the paediatrician appointment.
The Respondent’s Evidence
The respondent’s affidavit is littered with assertions as to the lack of any depth of the parties’ relationship, and the applicant’s lack of contributions. Much of the evidence in the respondent’s affidavit appears, at first blush, to go behind the declaration that the parties were in a de-facto relationship.
The respondent asserts that the parties met in about 2015, and that they started a sexual relationship at about that time. When it suited the applicant, she would visit the respondent and stay at his home. The respondent did not consider the applicant to be anything more than a friend. According to the respondent, the ‘on off sexual contact’ continued to occur for the next couple of years until in 2018 the applicant came to the respondent’s home with a pregnancy test, which confirmed that she was pregnant.
During the applicant’s pregnancy, the applicant stayed with the respondent in a spare room, ‘she came and went’. After the parties’ only child, X was born, the parties, according to the respondent, continued as they had during the pregnancy. That is, the respondent provided the applicant a room to stay in, but they apparently shared the care of X. The applicant would come and go, and when she was gone, the respondent would not be able to contact her.
According to the respondent, at no time over the course of 2015 to 2022, did he consider himself to be in a de-facto relationship with the applicant. The respondent deposes to a belief that the applicant used her social security payments to meet her own needs, and that the respondent met all his own financial obligations from his own income and earnings through his business.
Much of the respondent’s evidence is not relevant to the issues which the Court is asked to determine at this interim stage.
What the respondent fails to do, in his evidence, is to address the relevant financial matters.
There is, and there remains, an obligation on both parties to fully and frankly disclose not only to each other, but to the Court, all information relevant to the proceedings.
The respondent’s evidence is most unsatisfactory, and the Court has significant concerns about its veracity. It is well accepted that where evidence is uncontradicted and is not otherwise inherently improbable or inherently incredible, and where the other party has not elicited in cross-examination or led in evidence some material to overcome it, either by proving the contrary or throwing the matter into doubt, it should be accepted.[1]
[1] Bain v Bain (2017) 319 FLR 119 at [112].
While the respondent was not cross-examined, his own evidence is riddled with inconsistencies and/or improbabilities, as explained below, and such evidence leaves more questions than it answers.
The respondent has been self-employed since 2011. His usual occupation is in the services industry. The respondent started a business called ‘K Business’ in about 2011, which was later incorporated, albeit the respondent does not say when. In 2013, the company name was changed to ‘L Business’.
The respondent is the legal owner of three real estate assets. The first is his home at G Street, Suburb H, the second is a rental property at 1 C Street, Suburb D and the third is a vacant block of land at 2 C Street, Suburb D.
The respondent’s evidence[2] is that:
[2] Affidavit of Mr Bergsma filed 25 November 2024.
(a)In 2014, he purchased both 1 C and 2 C Street, Suburb D for $349,000 and $410,000, from ‘savings and income’ from his business.
(b)Each block was purchased with a $250,000 deposit respectively, which was ‘derived’ from the respondent’s savings and his work through his business.
(c)The purchases settled in mid-2016.
(d)The blocks of land were paid for in cash.
(e)He took out a mortgage from M Bank in the amount of $700,000 secured against the two properties.
(f)The loan was used to invest with the developer in its subdivision projects. The respondent was ‘initially’ to receive additional blocks of land for his investment, but ultimately, he received money. How much and when, the respondent does not say.
(g)In mid-2016, the respondent entered into a contract to build ‘the home at [Suburb D]’.
(h)In mid-2016, the respondent paid $600,000 to the developer as part of his investment arrangement with them.
(i)It seems that again, in late 2017, the respondent commenced the process of contracting with the developer to build a house at 1 C Street, Suburb D. He paid a deposit, although he does not say how much, or where the money came from.
(j)In 2018, for the third time it seems, the respondent entered into a contract, with the same developer, to build a home.
(k)In early 2018, the respondent paid some $59,000 to the developer and for other costs associated with the build.
(l)As at 2018, L Business was ‘producing significant income’ and the respondent had savings of approximately $180,000 which formed part of his ‘investment arrangement’ with the developer.
(m)In mid-2018, the respondent refinanced his loan with M Bank, increasing the loan limit to $995,000, with security ‘again taken over both properties’.
(n)In mid-2018, the respondent engaged a joinery company to complete the kitchen at 1 C Street, albeit this was part of the package he purchased through his contract with the developer.
(o)By late 2018, the respondent was able to move into 1 C Street, Suburb D.
(p)In mid-2020, the respondent paid a deposit for G Street, Suburb H, with the purchase price being $916,000. Contracts were exchanged the following month, and settlement occurred some 6 weeks later.
(q)The respondent paid for Suburb H ‘from existing funds and mortgages’ that he had over Suburb D properties.
(r)The respondent has met all the water rates, council rates, land tax, water usage, electricity and other services associated with the properties, and the applicant ‘has not contributed to the cost of the maintenance upkeep or running of the properties.’ The respondent did not ask her ‘as… [the parties] were not a couple and the properties belong to [the respondent]…’.
It is apparent from the respondent’s evidence that he was earning significant amounts of money through his business, given that he had a cash deposit of $500,000 in 2014 and a further sum of cash in the amount of $259,000 by mid-2016. By 2018, the respondent was able to save a further $180,000 from the significant income which his business was producing.
In or about 2017, the respondent commenced a ‘side business’ in sales. This was an online business. He bought items and then on-sold them onto customers. The respondent continues the sales business. It seems that this side business was conducted through the corporate entity, L Pty Ltd, but this is not entirely clear on the evidence.
As at 30 June 2021, L Pty Ltd had gross receipts of $474,319 and expenses of $467,464 which included director’s fees of $60,000, motor vehicle related expenses of almost $22,000, depreciation of motor vehicles of $20,000, and rent on land and buildings of $38,091. It also claimed expenses of materials and supplies of $150,687.
As at 30 June 2022, L Pty Ltd had gross receipts of $361,328 and expenses of $352,801, which included director’s fees of $30,000, motor vehicle related expenses of just over $22,000, depreciation of motor vehicles of $64,000, and rent on land and buildings of $28,045. It also claimed expenses of materials and supplies of $120,473.
As at 30 June 2023, L Pty Ltd had gross receipts of $12,824 and expenses of $12,824 exactly. Of that, $7,545 was paid for rent, $1,027 for motor vehicle expenses and $3,128 on account of depreciation of motor vehicles.
As at 30 June 2024, L Pty Ltd had gross receipts of $16,437 made up of income from sales of $23,435 with trading profit (loss) of $18,748, and income from the services business of $11,750. It paid $15,000 in wages, which presumably went to the respondent noting that in his 2023-24 income tax return he declared an income of $15,000.
There is no evidence in the respondent’s case as to the business premises of L Pty Ltd as at the time the financial statements for Financial Years ending 2021 through to 2024 were prepared. However, the Financial Statement filed 25 November 2024, indicates that the business address for L Pty Ltd is G Street, Suburb H. It will be interesting to learn, hopefully during the final hearing, further details about this business and its spending, and about the arrangements which the company has with the respondent in respect of its business premises.
In his 2022-23 income tax return, the respondent has told the Commissioner of Taxation that his primary residence is 1 C Street, Suburb D. The same representation is made in his 2023-24 income tax return. The Notice of Assessment for the financial year ended 30 June 2023 has the respondent’s address as 1 C Street, Suburb D.
Those tax returns show that the respondent receives rental income from an investment property, albeit the address is not stated, which is negatively geared. There is a net rent loss of approximately $12,000 in each of those two financial years
The respondent’s affidavit deposes to his dire financial circumstances at present. He says he is trying to re-establish both his sales business and the services business.
What the respondent fails to do is to explain why he stopped working and why the business had such a significant downturn after the parties’ separation. The respondent deposes to not working a ‘great deal in the past 2 years’ but that he is now in the process of trying to re-build his business.[3] He has explained that he was overseas in Country N for some months.
[3] Affidavit of Mr Bergsma filed 25 November 2024 at [6].
In his Financial Statement filed 25 November 2024, the respondent swears to the fact that he works full time as a service worker for L Pty Ltd. This is a company of which he is the sole director and shareholder of. The respondent’s income from his full-time employment is, however, said to be $0 as at 25 November 2024. Yet, the respondent asserts that he pays $351 per week in income tax.
According to his Financial Statement, the respondent derives an income from renting out 1 C Street, Suburb D. The gross rental income is $823 per week. According to the respondent’s Financial Statement he pays a loan secured by way of a mortgage, in the amount of $756 per week. The property is positively geared.
As noted earlier, the 2023-24 income tax return lodged by the respondent on 20 February 2025, has his home address for that financial year as 1 C Street, Suburb D. This is also reflected in the 2023 financial year Notice of Assessment.
Although his affidavit and Financial Statement both say that the respondent now lives at G Street, Suburb H, it is entirely unclear when the respondent moved into that address, and when he commenced claiming 1 C Street, Suburb D as an investment property (noting this was his residential address for the purposes of his financial year 2023 and financial year 2024 tax returns).
In his Financial Statement filed 25 November 2024, the respondent says that he has superannuation through a self-managed superfund, which has a corporate trustee, Q Pty Ltd. The Bergsma Family Super SMSF is referred to as ‘O Pty Ltd’. This is not explained anywhere in the respondent’s affidavit. The gross value of the respondent’s interest in the self-managed superfund is $20,756.
The respondent further discloses in his Financial Statement filed 25 November 2024, an interest in a bank account in the name of ‘P Pty Ltd’. There is no explanation in his affidavit as to what this company does or how he is involved in it.
The respondent asserts a home mortgage in the amount of $938,842. It was explained from the Bar Table that this mortgage is secured against all three properties in the respondent’s name. The respondent has a credit card debt of $1,679, and he asserts a liability to the Australian Taxation Office for L Pty Ltd in the amount of $71,944, although it was clarified through the respondent’s counsel that this is in fact not the respondent’s personal debt and that no notice has been issued to him as a director of the company in respect of any outstanding tax debt by the company.
As noted earlier, the respondent’s evidence leaves more questions than it answers.
Relevant legal principles
In determining whether to make an order for spousal maintenance, it is appropriate for the Court to determine the issue by consideration of the following:[4]
(a)Can the applicant support themselves adequately?
(b)If not, what are the applicant’s reasonable needs?
(c)What capacity does the respondent have to meet those needs?
(d)What order is reasonable, having regard to s 90SF(3) of the Act?
[4] Hanas & Jolaha (No. 4) [2019] FamCA 483 at [75] (‘Hanas’) citing Saxena and Saxena [2006] FamCA 588; (2006) FLC 93-268 per Coleman J.
The question as to whether or not a person is able to support themselves ‘adequately’ is:
[N]ot to be determined upon a “subsistence level” but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances. [Citations omitted].[5]
[5] Hanas at [79] citing M v M (2006) 36 Fam LR 97 at 106.
It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
Furthermore, a claim for maintenance is not limited by reference to current expenses because an applicant applying for maintenance may not have the ability to pay for commitments necessary to support themselves and thus avoid incurring what otherwise would be a reasonable expense. Therefore, the focus is on what is necessary for support.[6]
[6] Brown & Brown [2007] FamCA 151; (2007) FLC 93-316 at 81, 455-56 cited in Hanas at [80].
‘Capacity’ to meet an order for interim spousal maintenance is not confined to income. An order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.[7]
[7] Maroney & Maroney [2009] FamCAFC 45 at [56].
The Court can only make such an order ‘as it considers proper’[8] taking into account the factors set out in s 90SF(3) of the Act.
DETERMINATION
[8] Family Law Act 1975 (Cth) s 90SF(1).
Has the applicant established need?
The applicant has the full time care of the parties’ only child, X.
X has been diagnosed with Global Developmental Delay and Autism Spectrum Disorder. He is a child who needs particular assistance compared to his peers and he is a child with special needs. X commenced kindergarten in February 2025.
The applicant has modest savings of approximately $2,689.
Her only income is government benefits, which must be disregarded. She does not work and has not worked since late 2017.
The applicant lives in a one-bedroom flat with X, she would like to move into a two-bedroom unit so that both her and X can have their own bedroom. She is at present not able to afford to do so.
The applicant is studying in an effort to improve her prospects of employment.
The applicant’s personal expenses are assessed at $1,270 per week, noting the matters set out in her Financial Statement filed 9 September 2024.
Except for rent, none of the applicant’s personal expenses are related to X.
The Court well understands that a maintenance application is not a mechanism to obtain child support, but in the circumstances of this case, given the modest rent which the applicant is presently paying and proposes to pay for a 2-bedroom unit, such expense is far from being unreasonable. The Court does not propose to apportion the cost of rent between the applicant and her 5-year-old child for the purpose of assessing the applicant’s reasonable living expenses.
The applicant was criticised by the respondent for not putting before the Court evidence as to her attempts to find suitable employment. It was noted in the respondent’s Case Outline Document that the applicant’s ‘evidence as to the level and nature of external care and assistance receive by [X] suggests that there is no barrier to her obtaining employment’. The applicant was also criticised for her enrolment in a course to study and her desire to obtain employment in that field, vis-à-vis her asserted lack of capacity to adequately support herself. It was squarely put on behalf of the respondent, either she has to look after the child or she can work.
The respondent’s attitude is breathtaking. It is also contrary to established authority.
In Collingridge & Aiolfi[9] the Full Court has held as follows:
[25] …For the appellant’s argument to make good it would be necessary for us to interpret the provision in such a way that would require a parent of a young child to pursue full time employment at the expense of his or her desire to personally care for the child and, only if the parent was unsuccessful in securing paid employment, could there be a successful application for spousal maintenance (of whatever type). This is not an interpretation that could be properly given to the provision, which, in its terms, specifically requires that the Court takes account of the fact that an applicant for maintenance has child care responsibilities.
[26] Nor is it accepted that merely because the respondent has been able to enrol in a part-time degree course that this is “a clear admission of availability for employment despite her caring responsibilities” (Appellant’s summary of argument, filed 5 December 2018 at [23]). The better view is that a parent who has exclusive care of the child, may have some time to him or herself. Such a person is not required to spend every nanosecond looking for paid employment or attending to the needs of others before he or she is able to establish an inability to support himself or herself.
[9] [2019] FamCAFC 88.
The Court finds that the applicant is unable to support herself adequately by reason of having the care and control of X, the parties’ only child, who has not attained the age of 18 years.
The applicant requires $1,270 per week to support herself.
Does the respondent have capacity?
On the evidence as it stands, the respondent does not at present have a regular income sufficient to meet an order for weekly payment of maintenance.
However, he does have the capacity to meet such an order from his assets and/or earning capacity.
For example, he can sell the vacant land, namely 2 C Street, Suburb D, pay off the loan and be left in a position where he can reside in an unencumbered property and retain an asset earning income.
The respondent has significant assets in his name, and thus the capacity to meet an order for maintenance.
In addition, he also has the capacity to earn an income from his own personal endeavours, as he has in the past.
Should one of the properties be sold?
In the circumstances, an order for interim periodic maintenance will be made.
The Court has assessed and found that the respondent has the capacity to meet an order for interim maintenance. There are a number of avenues available to him to satisfy such an order.
The Court will give the respondent the opportunity to organise his financial affairs in a manner that best suits him, while also ensuring that he complies with Court orders.
If the respondent fails to comply with either the order for partial property distribution made on 24 February 2025 or the order for periodic interim maintenance made today, this will have consequences for the respondent.
These proceedings have some way to go before they are finalised, and it is likely that it will take at least a further 12 months for the matter to be heard on a final basis and a judgment delivered. It is not known whether the applicant will seek an order for ongoing maintenance on final basis. She may well do so.
In all of the circumstances, if the respondent defaults, it will be appropriate that he pay a lump sum of 12 months’ maintenance, less any periodic payments made to date of default. The respondent has assets of sufficient value to meet such an order.
The application for maintenance has been on foot since September 2024, a period of almost 6 months. The applicant should not have to wait any longer than 7 days for the respondent to pay her the periodic maintenance. Her application has at all times been properly made.
While the Court has already made an order for the respondent to pay the applicant $100,000 by way of partial property distribution within 90 days, there remains a risk that the respondent will not be able to meet such an order without further debt.
The respondent wants to retain all 3 properties and pay the applicant a sum of money which is the equivalent to 5% of the net pool, by way of final orders. He is presumably in a position to do so, otherwise no such application for final orders would have been made.
The applicant moves the Court for an order that if the respondent fails to comply with the orders made for the payment of $100,000 within 90 days, then the property at 1 C Street, Suburb D be sold, and the net proceeds of sale be applied to the payment of $100,000 to the applicant, as well as the payment of the lump sum maintenance order.
Noting the confusing nature of the evidence in the respondent’s case as referred to earlier, and that there is agreement that the value of 1 C Street, Suburb D is sufficient to not only pay out the debt which is secured against all three properties, but also to meet the respondent’s obligations in respect of the order for partial property distribution and the interim maintenance, it is appropriate that this property be sold to meet any default of the respondent.
The Court so orders.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 3 March 2025
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