Kensit & Kensit - [2022] FedCFamC1F 633

Federal Circuit and Family Court of Australia
(DIVISION 1)
Kensit & Kensit [2022] FedCFamC1F 633

File number(s): SYC 8643 of 2020

Judgment of: BRASCH J

Date of judgment: 28 July 2022

Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE –Reasonable needs - Whether the wife is unable to support herself adequately - Where the husband submitted that the wife was under-utilising her earning capacity and therefore the threshold under s 72(1) was not met - Where the wife was unemployed and the husband will not be attending medical appointments with the children - Threshold met – Capacity established

Legislation:
Evidence Act1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 72(1), 74(1), 75(2)(a)-(f), 75(2)(h), 75(2)(j), 75(2)(na), 75(3)

Cases cited:
Bevan & Bevan (1995) FLC 92-600; (1993) 19 Fam LR 35

Brown & Brown (2007) FLC 93-316; [2007] FamCA 151

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

Mitchell & Mitchell (1995) FLC 92-601 at 81 995; (1995) 19 Fam LR 44

Nutting & Nutting (1978) FLC 90-410; (1978) 30 FLR 556

Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570

Stein v Stein (2000) FLC 93-004; [2000] FamCA 102

Whisprun Proprietary Limited v Dixon (2003) 234 CLR 492; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 68

Date of hearing: 28 July 2022

Place: Sydney

Counsel for the Applicant: Mr Todd

Solicitor for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Mr Givney

Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd
ORDERS

SYC 8643 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KENSIT

Applicant

AND:
MS KENSIT

Respondent

order made by:

BRASCH J

DATE OF ORDER:

28 JULY 2022

THE COURT ORDERS BY CONSENT THAT:
Family Therapy
1.The parties shall engage in family therapy at the B Service with the first available therapist.
2.To facilitate Order 1 the parties shall do all acts and things to contact the B Service by 4.00 pm 1 August 2022 to arrange an appointment, and shall attend upon the first available date and time with the first available therapist.
3.Leave shall be granted to the parties to provide a copy of the Child Impact Report dated 13 July 2022 to the family therapist.
4.The parties shall take all steps necessary to lift the stop placed upon the offset account (bearing BSB …, account number …).
5.For the purposes of family therapy, the mother and father shall use the offset account for the purposes of that therapy, and only for that therapy.

Family Report
6.Pursuant to Chapter 7 of the Federal Circuit Court and Family Court (Family Law) Rules 2021 (Cth), Dr C, Psychiatrist ("the Expert" ) is appointed to enquire into and report upon matters relating to the welfare of the X, born in 2008, and Y, born in 2011.
7.In preparing the report to the court, the Expert be and is hereby requested to consider the following matters:
(a)the nature of the relationship between the children and…

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 Kensit & Kensit

Details

AGLC: Kensit & Kensit [2022] FedCFamC1F 633
Case: [2022] FedCFamC1F 633
Decision Date

CaseChat Overview and Summary

The case of Kensit & Kensit involved an interim application for spousal maintenance by Ms Kensit against Mr Kensit, with the Federal Circuit and Family Court of Australia (Division 1) adjudicating on the matter. The primary legal issues revolved around whether the wife met the threshold for spousal maintenance under section 72(1) of the Family Law Act 1975 (Cth) and, if so, what amount should be awarded under section 74 of the Act. The court examined whether Ms Kensit was unable to support herself adequately due to her care for the children, her incapacity for gainful employment, or other adequate reasons.

The court found that Ms Kensit met the threshold for spousal maintenance. She was primarily responsible for the care and control of the children, who had significant health challenges, and had been unemployed for several years, relying mainly on government benefits. Although Mr Kensit argued that Ms Kensit could support herself through employment, the court found insufficient evidence to support this claim at the interim stage. The court also considered various factors under section 75(2) of the Act in determining the wife’s capacity to support herself adequately.

In calculating the wife’s reasonable needs, the court disregarded income-tested benefits and considered her weekly expenses, resulting in a weekly requirement of $896. Mr Kensit’s financial statement indicated a gross weekly income of $3,015, and after deducting his expenses, he had a surplus of $1,583 weekly. Despite the husband’s argument that he could not meet the wife's maintenance needs due to his business's financial constraints, the court concluded that he had the capacity to pay the wife $896 per week in interim spousal maintenance until the final hearing. The court also made several orders regarding family therapy, medical appointments, and other parenting-related matters by consent.

Orders