Jenson & Jenson (No 2) - [2022] FedCFamC2F 1672

Federal Circuit and Family Court of Australia
(DIVISION 2)
Jenson & Jenson (No 2) [2022] FedCFamC2F 1672

File number(s): BRC 5906 of 2022

Judgment of: JUDGE TAGLIERI

Date of judgment: 5 December 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of Judicial Registrar’s decision – what are parties’ reasonable expenses – what is husband’s earning capacity – whether husband is required to exercise full earning capacity in circumstances where he has care of a child of the relationship – application allowed – interim spousal maintenance order made

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) rr 5.09(2), 14.07

Cases cited:
Burton (1979) FLC 90-610

DLM v JLM (1998) 23 FamLR 396

Jones v Dunkel [1959] HCA 8

Keymen & Keymen [2020] FamCAFC 70

Lusby (1977) 30 FLR 180

Maroney & Maroney [2009] FamCAFC 45

Division: Division 2 Family Law

Number of paragraphs: 61

Date of last submissions: 23 November 2022

Date of hearing: 21 November 2022

Place: Hobart

Counsel for the Applicant: Ms Murphy

Solicitor for the Applicant: Barry Nilsson Lawyers

Counsel for the Respondent: Mr Casey SC

Solicitor for the Respondent: JR Burns Law
ORDERS

BRC 5906 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS JENSON

Applicant

AND:
MR JENSON

Respondent

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

5 December 2022

THE COURT ORDERS THAT:
1.The Orders made by the Senior Judicial Registrar on 17 October 2022 are discharged effective from the date of these orders.

The Court further orders, until further order:
2.The parties are to exercise all reasonable efforts that the mortgage from Bank B is placed in financial hardship such that the minimum possible repayments are payable.
3.From the date of this order until 1 March 2023, that the Husband pay by way of spousal maintenance for the Wife:
(a)The Wife’s vehicle insurance, car maintenance and registration, loan repayments for the Wife’s vehicle and private health insurance; and
(b)The sum of $1,500 per week on condition that the mortgage relating to the property at C Street, Town D is in financial hardship and repayments are suspended either in part or whole; and

4.From 1 March 2023 and until further order, that the Husband pay by way of spousal maintenance for the Wife:
(a)The Wife’s vehicle insurance, car maintenance and registration, loan repayments for the Wife’s vehicle and Private health insurance; and
(b)The sum of $1,000 per week on condition that the mortgage relating to the property at C Street, Town D is in financial hardship and repayments are suspended either in part or whole.

5.In the alternative to Orders 3 and 4, should the mortgage not be in financial hardship and repayments are not suspended in whole or part, the Husband is to pay by way of interim spousal maintenance until further order:
(a)The Wife’s vehicle insurance, car maintenance and registration, loan repayments for the Wife’s…

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 Jenson & Jenson (No 2)

Details

AGLC: Jenson & Jenson (No 2) [2022] FedCFamC2F 1672
Case: [2022] FedCFamC2F 1672
Decision Date

CaseChat Overview and Summary

The case of Jenson & Jenson (No 2) involved an application by the husband, the respondent in the substantive proceedings, seeking review of spousal maintenance orders made by a Senior Judicial Registrar on 17 October 2022. The review hearing took place on 21 November 2022 and invoked the Court’s powers under s 256 of the Federal Circuit and Family Court of Australia Act 2021 and the Federal Circuit and Family Court (Family Law) Rules 2021. The court was required to determine the terms of the spousal maintenance orders, the husband's earning capacity, and whether the husband was required to exercise full earning capacity in circumstances where he has care of a child of the relationship. The wife sought variation of the interim spousal maintenance orders to increase the amount paid to her, while the husband argued that the orders were excessive and did not take into account his reduced income. The court considered the evidence and submissions from both parties and determined that the husband's earning capacity was $4,474 net per week, and that he had a surplus of approximately $400 per week after paying his expenses. The court also found that the wife's reasonable and necessary expenses were approximately $1,700 per week in addition to what the husband agrees to pay. The court ordered that the previous spousal maintenance orders be discharged and that the husband pay spousal maintenance in the amount of $1,500 per week until 1 March 2023 and $1,000 per week thereafter, subject to certain conditions relating to the mortgage repayments. The court also ordered that the parties exercise all reasonable efforts to ensure that the mortgage from Bank B is placed in financial hardship such that the minimum possible repayments are payable.

Orders