Kiesinger & Paget

Case [2008] FamCAFC 23

FAMILY COURT OF AUSTRALIA

KIESINGER & PAGET [2008] FamCAFC 23

FAMILY LAW - APPEAL – From decision of Family Court judge – interlocutory orders – leave to appeal

FAMILY LAW - SPOUSAL MAINTENANCE – Interim – meaning of “adequately” – “adequately” to be determined having regard to the s 75(2) factors

FAMILY LAW - SPOUSAL MAINTENANCE – Interim – where husband controlled over $17 million – where wife controlled over $270,000 – wife’s needs were $2,210 per week – where wife found to be unable to support herself adequately – trial Judge made an order for interim spousal maintenance of $2,000 per week and other expenses – no error of principle demonstrated or substantial injustice – leave to appeal refused
Family Law Act 1975, s 72, s 74, s 75(2)
Aarons v Knowles (1995) FLC 92-627
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170
Alfasi and The Alfasi Group (2006) FLC 93-271
Bruce F McLaren Holdings Pty Ltd & Ors v McLaren and McLaren (2000) FLC 93‑030
Butler, Man and Child Support Registrar [2003] FamCA 33
Mitchell and Mitchell (1995) FLC 92-601
Project Blue Sky v ABA (1998) 194 CLR 355
Rutherford and Rutherford (1991) FLC 92-255
Wilson and Wilson (1989) FLC 92-033
APPLICANT: Mr Kiesinger
RESPONDENT: Ms Paget
FILE NUMBER: PTW 1586 of 2007
APPEAL NUMBER: WA 17L of 2007
DATE DELIVERED: 7 March 2008
PLACE DELIVERED: Brisbane
PLACE HEARD: Perth
JUDGMENT OF: Coleman, Warnick and Thackray JJ
HEARING DATE: 31 January 2008
LOWER COURT JURISDICTION: Family Court of Western Australia
LOWER COURT JUDGMENT DATE: 23 August 2007
LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr A Dickey QC
SOLICITOR FOR THE APPLICANT: Holden Barlow
COUNSEL FOR THE RESPONDENT: Mr J B Hedges
SOLICITOR FOR THE RESPONDENT: O'Sullivan Davies

Orders

  1. That the Form 2 Application in a Case filed by the applicant on 3 October 2007 and the Form 2A Response to an Application in a Case filed by the respondent on 23 October 2007 be dismissed.

  2. That the applicant shall pay the respondent’s costs of the application as agreed or failing agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Kiesinger and Paget is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 17L of 2007
File Number: PTW 1586 of 2007

Mr Kiesinger

Applicant

And

Ms Paget

Respondent

REASONS FOR JUDGMENT

  1. Mr Kiesinger (“the husband”) seeks leave to appeal against an interim maintenance order made by Martin J on 23 August 2007.  The respondent, Ms Paget (“the wife”), opposes the granting of leave.

Background

  1. The husband and wife commenced cohabitation in 1984, prior to their marriage in 1987.  They separated in 2006.  They were both 45 years of age at the time of the hearing.  They have two children, one of whom has left school and is working.  The other child, [S], is 13 years old.

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Details
AGLC
Kiesinger & Paget [2008] FamCAFC 23
Case
[2008] FamCAFC 23
Decision Date

CaseChat Overview and Summary

The appeal in Kiesinger & Paget concerned interlocutory orders made by a Family Court judge in a proceeding involving a dispute over spousal maintenance. The husband, who controlled over $17 million, appealed the decision of the trial judge who had ordered interim spousal maintenance of $2,000 per week and other expenses for the wife, who controlled over $270,000. The wife's weekly needs were assessed at $2,210, and she was found to be unable to support herself adequately.

The legal issues before the court were whether the trial judge had correctly applied the law in determining the amount of interim spousal maintenance, and if the husband had demonstrated an error of principle or substantial injustice that warranted leave to appeal. The court was required to examine whether the trial judge had appropriately considered the relevant factors under section 75(2) of the Family Law Act in assessing the wife's needs and the husband's capacity to pay. The court also needed to determine whether the husband had demonstrated that the trial judge's decision was so erroneous that it warranted an appeal.

The court found that the trial judge had correctly applied the law and the relevant factors in determining the amount of interim spousal maintenance. The trial judge had considered the husband's substantial assets and income, the wife's needs and capacity to support herself, and the length of the marriage, among other factors. The court held that there was no error of principle demonstrated or substantial injustice that would warrant an appeal. Consequently, the appeal was dismissed, and the husband was ordered to pay the wife's costs of the application.

Orders

Orders of the court

1.

That the Form 2 Application in a Case filed by the applicant on 3 October 2007 and the Form 2A Response to an Application in a Case filed by the respondent on 23 October 2007 be dismissed.

2.

That the applicant shall pay the respondent’s costs of the application as agreed or failing agreement, as assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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