Kehoe & Seden (No 5) - [2023] FedCFamC1F 844

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kehoe & Seden (No 5) [2023] FedCFamC1F 844

File number(s): SYC 7833 of 2018

Judgment of: HARPER J

Date of judgment: 5 October 2023

Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE – Interim orders – Where orders previously made for husband to pay wife interim spousal maintenance – Husband sought to discharge spousal maintenance orders – Where husband argued he no longer has the financial resources to meet his spousal maintenance obligations – Where husband and second respondent are directors of the corporate trustee of a testamentary trust – Where husband argued that testamentary trust would no longer loan him funds – Where husband’s financial resources were subject of recent judicial determination – Husband did not satisfy the Court he did not have capacity to pay spousal maintenance or “just cause” exists to discharge spousal maintenance –
Application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 72(1), 83

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 68

Cases cited:
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Kehoe & Seden (No 2) [2022] FedCFamC1F 346

Kehoe & Seden (No 4) [2023] FedCFamC1F 753

Kehoe & Seden [2019] FamCA 989

Seden & Kehoe [2020] FamCAFC 294

Division: Division 1 First Instance

Number of paragraphs: 26

Date of hearing: 22 September 2023

Place: Sydney

Counsel for the Applicant: Ms Kennedy

Solicitor for the Applicant: Rubin Blight Hardy Family Lawyers & Mediators

Counsel for the First Respondent: Mr Kasep

Solicitor for the First Respondent: Coleman Greig Lawyers

Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Fourteenth, Fifteenth, Sixteenth and Seventeenth Respondents: Ms Jeliba

Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Fourteenth, Fifteenth, Sixteenth and Seventeenth Respondents: Barkus Doolan Winning

Solicitor for the Eighth and Thirteenth Respondents: Mr Wahhab of York Law Family Law Specialists

Solicitor for the Eighteenth Respondent: No appearance
ORDERS

SYC 7833 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KEHOE

Applicant

AND:
MR SEDEN

First Respondent

MS G SEDEN

Second Respondent

MR L SEDEN (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

5 OCTOBER 2023

THE COURT ORDERS THAT:
1.The Response filed by the First Respondent on 20 July 2023 be dismissed.
2.Costs be reserved.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family…

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 Kehoe & Seden (No 5)

Details

AGLC: Kehoe & Seden (No 5) [2023] FedCFamC1F 844
Case: [2023] FedCFamC1F 844
Decision Date: 5 October 2023

CaseChat Overview and Summary

The case of Kehoe & Seden (No 5) involved a dispute between Ms Kehoe and Mr Seden, with Ms Seden also being named in the proceedings. The primary issue before the court was the husband's application to discharge the existing spousal maintenance orders, which required him to pay $1,000 per week. This application was made under Section 83 of the Family Law Act 1975 (Cth), which allows for the discharge or variation of spousal maintenance orders if there is "just cause." The husband argued that he no longer had the financial resources to meet these obligations due to the cessation of loans from a testamentary trust of which he and the second respondent were directors. The husband's financial resources had been the subject of recent judicial determination, which played a significant role in the court's assessment.

The court had to determine whether the husband had satisfied the criteria for discharging the spousal maintenance orders, specifically whether he demonstrated that he lacked the capacity to pay or that there was "just cause" for discharging the orders. The husband's argument that he could not access funds from the testamentary trust to meet his obligations was weighed against the findings of a previous judicial determination that had assessed his financial capacity. The court also considered the impact of the husband's voluntary child support payments, which had been factored into the original spousal maintenance order.

The court concluded that the husband had not demonstrated that he lacked the capacity to pay the spousal maintenance or that there was "just cause" to discharge the orders. The husband's financial circumstances, as previously assessed by the court, did not provide sufficient grounds for discharging the spousal maintenance obligations. Consequently, the application to discharge the spousal maintenance orders was dismissed. The court reserved the costs of the proceedings for a later determination.

The final order of the court was that the husband's response filed on 20 July 2023 be dismissed, and costs were reserved. The form of the order is subject to entry in the Court's records and may be subject to review or variation in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

SYC 7833 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KEHOE

Applicant

AND:

MR SEDEN

First Respondent

MS G SEDEN

Second Respondent

MR L SEDEN (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

5 OCTOBER 2023

THE COURT ORDERS THAT:

1. The Response filed by the First Respondent on 20 July 2023 be dismissed.

2. Costs be reserved.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The proceedings had been listed for final hearing to commence on 27 November 2023, however, it became apparent that the final hearing would be unable to proceed on the allocated dates in the absence of various valuations. Those dates have since been vacated and the matter does not presently have fresh final hearing dates allocated. BACKGROUND On 7 July 2023, the wife filed an Amended Application in a Proceeding seeking a range of interim orders. I heard the most of the application on 26 July 2023 and delivered Kehoe & Seden (No 4) on 1 September 2023, the findings of which bear on the issues the subject of this judgment. However, on 26 July 2023, it became apparent from the wife’s case outline filed 24 July 2023 that the wife sought the sale of the property known as W Street, Suburb E (“Suburb E property”) and the husband in his Response filed 20 July 2023 sought the discharge of an order made on 13 December 2019 which required him to pay the wife $1,000 per week in interim spousal maintenance. By reason of the late notice of both applications, those interim issues were stood over for further hearing on 22 September 2023, in the event the parties wished to press their respective applications. The parties reached an agreed position with respect to the sale of the Suburb E property and I made orders accordingly. I made further orders vacating the November final hearing dates and requiring the parties to attend mediation by no later than 29 November 2023. The wife tendered an email from Coleman Greig Lawyers dated 19 September 2023, which became Exhibit B, informing the wife’s lawyers that the husband was “unable to pay the single expert valuer’s fees pursuant to the Orders made 1 September 2023” (Exhibit B). But the orders for sale of the Suburb E property will result in funds being held for the payment of experts’ fees. Consequently, the burden of those fees will not fall upon the other resources of the husband. This left the husband’s application for discharge of existing spousal maintenance orders for determination.Spousal Maintenance Following an interim hearing in October 2019, Stevenson J made orders on 13 December 2019 for the husband to pay $1,000 per week by way of interim spousal maintenance (Order 1) as well as an order for the husband to pay the wife $100,000 to be categorised as a partial property settlement. Her honour took into consideration the husband’s voluntary child support payments of $3,500 per month in determining that a quantum of $1,000 per week should be paid to the wife “on the basis that he will continue to provide an amount of $3,500 per month” (Kehoe & Seden [2019] FamCA 989 at [35]). It was noted that at the time there was a dispute with respect to the categorisation of the voluntary payment of $3,500 per month, which has since been resolved. The husband relied upon s 83 of the Act to discharge or vary spousal maintenance orders, whether interim or final, for “just cause”. The threshold or gateway, as the High Court called it in Hall v Hall (2016) 257 CLR 490 at [3] (“Hall”), to making a spouse maintenance order is specified in s 72(1) of the Act in the following terms “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately ... having regard to any relevant matter referred to in [s] 75(2)". In Hall at [10] the High Court pointed out “just cause” in s 83 imports a need for the Court to be satisfied of circumstances which justify the Court considering that threshold requirement again.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 7833 of 2018
Judgment of:	HARPER J
Date of judgment:	5 October 2023
Catchwords:	FAMILY LAW – SPOUSAL MAINTENANCE – Interim orders – Where orders previously made for husband to pay wife interim spousal maintenance – Husband sought to discharge spousal maintenance orders – Where husband argued he no longer has the financial resources to meet his spousal maintenance obligations – Where husband and second respondent are directors of the corporate trustee of a testamentary trust – Where husband argued that testamentary trust would no longer loan him funds – Where husband’s financial resources were subject of recent judicial determination – Husband did not satisfy the Court he did not have capacity to pay spousal maintenance or “just cause” exists to discharge spousal maintenance – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, ss 72(1), 83 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 68
Cases cited:	Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 Kehoe & Seden (No 2) [2022] FedCFamC1F 346 Kehoe & Seden (No 4) [2023] FedCFamC1F 753 Kehoe & Seden [2019] FamCA 989 Seden & Kehoe [2020] FamCAFC 294
Division:	Division 1 First Instance
Number of paragraphs:	26
Date of hearing:	22 September 2023
Place:	Sydney
Counsel for the Applicant:	Ms Kennedy
Solicitor for the Applicant:	Rubin Blight Hardy Family Lawyers & Mediators
Counsel for the First Respondent:	Mr Kasep
Solicitor for the First Respondent:	Coleman Greig Lawyers
Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Fourteenth, Fifteenth, Sixteenth and Seventeenth Respondents:	Ms Jeliba
Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Fourteenth, Fifteenth, Sixteenth and Seventeenth Respondents:	Barkus Doolan Winning
Solicitor for the Eighth and Thirteenth Respondents:	Mr Wahhab of York Law Family Law Specialists
Solicitor for the Eighteenth Respondent:	No appearance

SYC 7833 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KEHOE Applicant
AND:	MR SEDEN First Respondent MS G SEDEN Second Respondent MR L SEDEN (and others named in the Schedule) Third Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	5 OCTOBER 2023