Kitman and Kitman

[2007] FamCA 822

FAMILY COURT OF AUSTRALIA

KITMAN & KITMAN [2007] FamCA 822

FAMILY LAW - APPEAL – MAINTENANCE – Interim spousal maintenance – Husband ordered to pay lump sum maintenance of $2,000 and interim periodic maintenance of $660 per week – Wife’s need for maintenance conceded – Husband claimed he lacked capacity to pay the maintenance sought and could only afford $75- 80 per week – Trial judge found husband was not a witness of credit as to the manner in which he disposed of some small savings and then wrongly refused to accept his evidence as to expenditure even though it was modest and credible – Husband’s liability to pay his share of the mortgage on home occupied by wife is a necessary expense (see In the Marriage of Gyselman (1992) FLC 92-279) - After this payment and all other expenses, he has only $110 per week reasonably remaining to satisfy a maintenance order and the appeal is allowed to reflect this finding – Due to the scant evidence of the wife’s immediate need, the lump sum is reduced to $1,000 – While it is noted that the parties’ financial circumstances have changed since October 2006, it is disproportionate for the Full Court to consider these changes in light of the impending property proceedings where any variation to the interim spousal maintenance order can be appropriately dealt with

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; (1981) 35 ALR 625
Bolitho v Cohen (2005) FLC 93-224; (2005) 33 Fam LR 471
GWP Aarons & Co v Knowles (1995) FLC 92-627; (1995) 19 Fam LR 462
In the Marriage of Gyselman (1992) FLC 92-279; (1991) 15 Fam LR 219
In the Marriage of Rutherford (1991) FLC 92-255; (1991) 15 Fam LR 1
Stein v Stein (2000) FLC 93-004; (2000) 25 Fam LR 727

APPLICANT/APPELLANT: MR KITMAN

RESPONDENT: MS KITMAN

FILE NUMBER: TVF 2438 of 2005

APPEAL NUMBER: NA 11 L of 2007

DATE DELIVERED: 15 August 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: BRISBANE

JUDGMENT OF: BRYANT CJ, KAY & MAY JJ

HEARING DATE: 30 JULY 2007

LOWER COURT JURISDICTION: FAMILY COURT OF AUSTRALIA

LOWER COURT JUDGMENT DATE: 27 SEPTEMBER 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT/

APPELLANT:

IN PERSON

SOLICITOR FOR THE APPLICANT/

APPELLANT:

COUNSEL FOR THE RESPONDENT: MS PAGANI

SOLICITOR FOR THE RESPONDENT: WILSON RYAN & GROSE

ORDERS

1. That the applicant have leave to appeal the orders made by the Honourable Justice Monteith on 27 September 2006.

2. That the appeal be allowed.

3. That order 1(a) of the orders be varied by substituting the sum of $1,000 for $2,000 therein appearing.

4. That order 1(b) of the orders be varied by substituting the sum of $110 for the sum of $660, and the sum of $220 for the sum of $1,320 therein appearing.

5. That order 2(i) be varied by substituting the words “one half of mortgage payments in the sum of $500 every four weeks” for the words “mortgage payments in the sum of $1,000 per month” therein appearing.

6. That orders 3 and 4 of the orders be set aside.

7. That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

8. That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Kitman and Kitman.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA11L of 2006
File Number: TVF2438 of 2005

MR KITMAN

Applicant/Appellant Husband

And

MS KITMAN

Respondent Wife

REASONS FOR JUDGMENT

1. This is the husband’s application for leave to appeal and if leave is granted to appeal against orders for the payment of interim spousal maintenance made by Monteith J on 27 September 2006. 

2. The orders which are the subject of the proposed appeal provided that the husband should pay to the wife:

   (a)A lump sum of $2,000;

   (b)$1,320 per fortnight periodic maintenance; and

   (c)The wife’s costs of her application for spousal maintenance.

3. The wife was to be responsible for the payment of:

   (a)Mortgage payments in the sum of $1,000 per month in respect of the former matrimonial home;

   (b)Rates and house insurance premiums in respect of the former matrimonial home; and

   (c)Motor vehicle insurance premiums in respect of her motor vehicle.

4. An order for periodic payments until further order has consistently been considered to be an interlocutory decree from which leave to appeal is required (see s 94AA Family Law Act 1975 (Cth) (“the Act”) and reg 15A of the Family Law Regulations 1984 (Cth), Stein v Stein (2000) FLC 93-004; (2000) 25 Fam LR 727; and Bolitho v Cohen (2005) FLC 93-224; (2005) 33 Fam LR 471).

5. The principles governing an application for leave under s 94AA(1) of the Act are well known. In order to succeed in such an application the applicant must satisfy this Court that there has been an error of principle by the trial judge and/or that the orders made caused a substantial injustice to the applicant: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; (1981) 35 ALR 625 and In the Marriage of Rutherford (1991) FLC 92-255; (1991) 15 Fam LR 1. Leave may also be granted in cases where the applicant demonstrates that the case raises issues of general importance: GWP Aarons & Co v Knowles (1995) FLC 92-627; (1995) 19 Fam LR 462.

BACKGROUND

1. The parties married in May 1991 and separated in July 2005.  They have two children J born in June 1990 and D born in December 1991.  The wife is occupied with home duties and the husband is a sergeant in the Australian Defence Forces. 

2. When the parties separated the wife and children remained in the former matrimonial home.  The husband continued to meet mortgage, rates and insurance payments relating to the property and to make other payments in respect of life insurance policies for each of the parties and the wife’s motor vehicle insurance.  The husband was paying child support but there were disputes between the parties concerning the extent to which the husband’s child support obligations could be met by the monies from which he was paying mortgage and rates and insurances on the former matrimonial home.  The husband has been assessed to pay child support in the sum of $15,856 per annum ($304 per week) but successfully applied to have that reduced to $8,462 per annum ($163 per week) to take account of the non-Agency payments to the extent of $616.23 per month ($142 per week) for monies paid towards the mortgage, rates and home insurance payments and motor vehicle costs.

THE HEARING

1. On 2 August 2006 the wife filed an application seeking orders that the husband pay her $5,000 lump sum spousal maintenance and until further order spousal maintenance in the sum of $500 per week.  There were proceedings pending concerning the parties’ parenting arrangements for the children and issues of property settlement and it was intended that the spousal maintenance application would deal with the situation pending the disposal of those proceedings. 

2. In support of her application for lump sum spousal maintenance the wife deposed that the kitchen sink needed fixing and the repairs would cost a minimum of $500.  She further deposed that her motor vehicle required repairs totalling $1,000.  No details were provided in relation to the urgency of the repairs to be carried out to the kitchen sink nor the motor vehicle.  The husband had responded to this claim by asserting the sink needed a new O ring at a cost of less than $5.

3. The wife also indicated that she had borrowed money from her parents and from her son from a previous relationship to pay some bills.  In his response the husband sought that the wife’s application be dismissed.

4. The hearing before the trial judge commenced with the following statement:

   MS LIENERT [solicitor for the wife]:           This application before the Court is an application for spousal maintenance, both lump sum and periodic ---

   And the need has been conceded so the purposes of today would be to cross-examine the husband ---

   As to means.

   MR LYNHAM [counsel for the husband]:       That’s right…

5. The case was opened by Ms Pagani, the wife’s counsel, asking for $5,000 lump sum and $500 per week.  The wife was called to give evidence and was cross-examined in relation to the child support arrangements.  The wife indicated that it was her preference to receive the full assessment of child support and be personally responsible to meet her share of the mortgage repayments and the like rather than have the husband pay them and deduct them from the child support.  None of the cross-examination focused on the wife’s claim for a lump sum nor indeed did it seek to challenge any of her claims to expenses.  There was no suggestion put that she had any earning capacity. 

6. The husband was then called to give evidence.  He had sworn a financial statement filed on 28 August 2006.  He disclosed income from two sources, namely his salary as a soldier of the Defence forces in the gross sum of $1,453 per week and a Veterans Affairs pension of $64.60 per week.  He had income tax of $358.26 per week and superannuation of $65.68 per week leaving a net disposable income of $1093.66 per week. 

7. Apart from his child support commitments and the payments he was meeting for the mortgage, rates and home insurance payments and motor vehicle costs, he asserted that he had personal average weekly expenses of $280 per week and paid $70 per week rent.  In addition, he said that he owed the tax department $3,269.90 which he was repaying at the rate of $62.90 per week.  He was spending $46.40 per week to repay a loan to acquire a motor vehicle and he was repaying credit card debts at the rate of $23 per week.

THE TRIAL JUDGMENT

1. The trial judge commenced by indicating that he proposed to make orders that the wife be responsible for payments for mortgage, rates, insurance, registration etcetera which had enabled the husband to reduce his child support obligations from $15,856 per annum to $8,462 per annum.  The trial judge said he was intending to do that because the wife preferred that course and that:

   3.…the evidence establishes that, for at least a time, the husband was in arrears…

2. We interpose to say that what the evidence established is that there were two months at the commencement of 2006 when the periodic mortgage repayments to the bank were not made but, as the husband was already in advance in respect of those payments the bank did not require any further payments to be made. 

3. The trial judge then indicated that the husband had asserted he could only afford $75 – $80 per week for spousal maintenance.  His Honour found that the husband’s bank statements showed that he was in receipt of $2,108.38 per fortnight and that the husband’s claim for fortnightly expenses, including rent, was $700, leaving aside periodic payments for the mortgage and the like.

4. His Honour mentioned that the husband’s group certificate for 2005/6 included a reportable fringe benefit of $4920 but did not identify what that fringe benefit related to.  He noted that counsel for the wife submitted the fringe benefit should be added to his other income to establish how much money he had available to meet his personal requirements, his child support obligations and his spousal maintenance obligations.  Whilst it is not clear that his Honour accepted or rejected that submission, unless the sums attributable to the fringe benefit were otherwise being claimed as a necessary expense, it would be inappropriate to treat the fringe benefit as a source of available funds to meet a maintenance or child support obligation.

5. By way of example the provision of car parking at his place of employment may appear as a taxable benefit in his group certificate but have no corresponding value as cash available to be spent by him.  Unless he was otherwise asserting the cost of car parking as a necessary component of self support, it would be appropriate to simply ignore the fringe benefit when calculating whether or not he had a sum available to provide spousal maintenance.

6. In any event there was no evidence that whatever the fringe benefit was in 2005/6, it was still being received in 2006/07 when the case was heard. 

7. The trial judge then turned to pay attention to the calculations made by the husband’s counsel.  The husband’s counsel had submitted that the husband’s average income per week was $1,062.62 and that his expenditure was as follows:

   Mortgage  $250.00

   Rates  $32.00

   Life Insurance (Husband)  $7.80

   Life Insurance (Wife)  $9.52

   Contents Insurance  $5.46

   Building Insurance  $6.74

   Car Insurance  $22.20

   Motor Cycle Registration  $7.80

   [Wife’s car’s] Registration  $10.80

   [Husband’s car’s] Registration  $12.00

   Tax Office  $62.90

   Car Loan  $46.40

   Child Support  $163.00

   Rent  $70.00

   Living Expenses  $280.00

   Total  $986.62

8. The trial judge then said that he would deduct the mortgage repayments, the rates, the life insurances, the contents insurance, the building insurance and the car insurance, all adding up to $333.72, and the payment to the tax office of $62.90 in relation to which his Honour said:

   10.      …I find this is not a true deduction…

   His Honour calculated those deductions would leave the husband with a surplus of $590 per week.

9. The trial judge went on to say that the wife was claiming a lump sum payment of $2,000 and maintenance of $660 per week.  His Honour said:

   12.…if I accepted the husband’s evidence I could not make such an order…because all of his income would be used in paying his ordinary expenses.  However I do not accept the husband’s evidence.

10. The trial judge explained his rejection of the husband’s evidence as follows:

    13.I found him not to be a witness of credit and I do not accept his evidence with respect to his expenditure.  From his bank statements, it is clear that he must have travelled to the State where his mother resides, in April 2006 and withdrew sums from ATMs in a period of less than two weeks, totalling $2450.  It seems hard to accept that he could have accumulated this amount if he had been incurring the expenses he claims in his Financial Statement. 

    14.Much more importantly, immediately after his return from [overseas duty] in late July 2006, and aware that the wife was seeking spousal maintenance, he withdrew from his account $500 on the 24 July 2006, $5000 on the 26 July 2006, $2000 on the 28 July 2006 and a further $2000 on the 31 July 2006.  A total of $9500.  His explanation was that most of those moneys were given to Mr M-D to reimburse him for moneys he had paid on the husband's behalf whilst the husband was [overseas].  It so happens that at about the same time he purchased airfares to travel to [his mother’s home State] and spent approximately a month [there].  He said this was to look after his ill mother.

    15.Mr [M-D] was called to give evidence.  I found him to be a truthful witness.  He said that he did pay some accounts for the husband whilst the husband was [on overseas duty] but the money had been given to him prior to the husband going [overseas], not on the husband's return.  The husband's bank statements show withdrawals immediately before his deployment [overseas] amounting to $5200, which is approximately what Mr [M-D] thought the husband had left with him in a wallet from which to pay the husband's bills.

    16.I do not accept the husband withdrew the $9500 or thereabouts, to give to Mr [M-D] on his return from [overseas duty].  I conclude that the husband has either retained or spent that sum in order to try and defeat the wife's claim to maintenance.  I do not accept his claims with respect to his living expenses.  I find he can well afford to pay the periodic maintenance sought by the wife in her final submissions.

11. The reference in paragraph 13 to the withdrawal of the sums from the ATMs in April 2006 is difficult to understand.  The bank statement shows no untoward movements in the husband’s bank accounts.  The account had been in debit as recently as 8 February 2006 in the sum of $1,102.88 but by early April was in credit in the sum of $2,845.16.  The only significant amounts entering into the account from February to April appear to come from the husband’s salary and pension.  It was never suggested to him in cross-examination that his expenses were not real and the fact that some of them may have not actually fallen due between February and early April was not an indication that his claimed expenditure was in any way inaccurate.

12. We will return to the discussion about the conflict between the husband and Mr M-D’s evidence shortly.

13. It is sufficient that we note at this time that the husband’s claims with respect to his living expenses were never challenged and that the trial judge does not explain which of the husband’s claims in relation to his living expenses were not accepted.  The husband’s claims were modest and all inherently probable.  There seemed no basis whatsoever for rejecting his evidence about those matters. 

14. The lump sum claim was dealt with by the trial judge in paragraph 17 where his Honour said:

    17.Further, his bank accounts discloses [sic] a balance sufficient to pay the lump sum of $2000 as sought by the wife and he will receive a further payment of salary within seven days of approximately a further $2000.  I therefore, [sic] propose to make the orders sought by the wife.

15. Having then determined that the husband should pay the wife $2,000 by way of lump sum and $660 per week periodic maintenance, the trial judge ordered that the wife should be responsible for the mortgage payments of $1000 per month, the rates and house insurance premiums and the motor vehicle insurance premiums for her car. 

16. The trial judge then turned to the question of costs and concluded that as he had found that the husband had knowingly made a false statement in the proceedings he was obliged by s 117AB of the Act to make an order for costs in favour of the wife. After paying attention to the relevant financial positions of the parties his Honour said:

    28.…The matter that really persuades me that I should make an order against the husband for costs, on a party and party basis, is that he has been wholly unsuccessful in these proceedings.  In his response he simply sought that the wife’s application be dismissed.  He sought an order for costs against her.  In those circumstances it seems to me that the wife had to come to Court to obtain a just order for spousal maintenance, both lump sum and periodic and she should not be disadvantaged financially by way of costs in having to do that when she has been substantially successful in her application.

THE APPEAL

1. The husband appeared in person at the appeal.  His Notice of Appeal seeks to argue 21 grounds.  We think it is unnecessary to deal individually with the grounds.  In our view the reasons for judgment demonstrate sufficient errors of principle and fact which make it appropriate that the appeal be allowed.

2. The entitlement to maintenance and the obligation to pay maintenance is governed by the provisions of ss 72, 74 and 75 of the Act.

3. Section 72 provides that the husband’s liability to maintain the wife is limited to the extent that he is reasonably able to do so.

1. Section 75(2) requires the court to take into account inter alia:

   …

   (d)commitment of each of the parties that are necessary to enable a party to support:

   (i)        himself or herself; and

   (ii)a child or other person that the party has a duty to maintain;

   …

   (na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; [and]

   (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

2. In determining the extent to which the husband had an ability to maintain the wife in this case the principled and orthodox approach was to start with the available evidence of the husband’s income (there being no capital resources readily available to provide for support) and then to deduct from that income amounts that could be reasonably said to fit within the requirement of the husband’s commitments to support himself and to pay child support to determine whether it was appropriate to provide the surplus to the wife. 

3. The matter was complicated by the arrangements with the Child Support Agency whereby the Agency had allowed the husband to meet part of his child support obligations by making payments on behalf of the wife towards housing and motor vehicle costs.  If, as the trial judge was suggesting, the wife was to become responsible for those payments and relieve the husband of them, that would necessarily impact upon the child support in a direct dollar for dollar sense.  It could be seen from the Notice of Decision of the child support review officer dated 21 March 2006 that the child support assessment of $15,856 per annum ($304 per week) was reduced down to a liability of $8,462 per annum ($162 per week) because the husband was able to offset the wife’s share of the mortgage rates and home insurance and motor vehicle payments on a dollar for dollar basis.  If the trial judge was relieving the husband of the obligation to meet those payments then the effect would be predictably to increase the child support obligation.

4. Doing the mathematics, on what is the unchallenged evidence of the husband as to his expenditure the outcome would be as follows:

   Net weekly income  $1054

   Less:

   Prospective child support liability  $304

   Personal expenditure  $280

   Rent  $70

   Tax debt  $63

   Car loan  $46

   Car registration  $12

   Car insurance   $11

   Credit card repayments  $23

   That would leave a surplus of $245 per week but would make no allowance for the husband’s obligation to meet his share of the mortgage of $125.  Even though the husband was no longer residing in the home, he still had a contractual liability to meet that loan.  It could not however be said that that liability was such that it was a commitment necessary to enable the husband to support himself in the immediate sense but the maintenance of a satisfactory credit rating may well have impacted upon his capacity in the future to adequately support himself.

5. In In the Marriage of Gyselman (1992) FLC 92-279; (1991) 15 Fam LR 219 the Full Court (Nicholson CJ, Fogarty and Nygh JJ) sought to resolve conflicting first instance authorities on how stringently a judge should interpret the requirement that an expense be classified as being “necessary” before it could impact on a payer’s ability to contribute towards child support. Their Honours said at 79,075; 237:

   The obligation of the non-custodian to pay off debts may amount to such a commitment.  It is, we think, too narrow an approach to suggest that as these are liabilities to a third party they are not necessary for the parent to support himself.  Such a liability may be enforced against the parent by an order to garnishee his wages or to seize his property or to render him bankrupt.

   Whether a particular obligation to pay off a debt should or should not be included within para (a)(iii) depends upon the circumstances of the individual case.  The various cases referred to above are obvious illustrations of cases which fall either side of the line.  Pre-separation debts are not a separate category in their own right but they do arise from joint liabilities of the parties entered into prior to the separation and which one party may be left to meet.  Debts incurred by the absent parent necessary to meet his changed circumstances, including furniture and accommodation, may fall within that provision.  Many debts would not be included either because they are not sufficiently connected with the paragraph or because they are not reasonable in amount or could by rearrangement of that person’s finances or circumstances have been avoided.  It is a matter of judgment and degree in the individual case, bearing in mind in particular that ultimately it is a matter of competing priorities…   

   It follows from what we have said that para (c)(i) should be interpreted so as to include liabilities where that is appropriate.  It would, we think, be artificial, in considering the capacity of a non-custodian to provide financial support for his children, to include his property and financial resources but necessarily to ignore his liabilities.

6. So, classifying the husband’s share of mortgage repayments as a necessary expense and deducting it from his weekly surplus of $245 leaves him with $120 available to satisfy a maintenance order.

7. By approaching the matter in a principled and disciplined manner in accordance with the Act it becomes immediately apparent that the order made by the trial judge is unsustainable.

8. There was no suggestion that the husband had any other source of income than that which was disclosed.  His claimed expenses were not the subject of any cross-examination other than that he was challenged in relation to some very small life insurance premiums that we have not included in the list of commitments that are necessary for him to support himself.  He was not asked any questions at all in relation to the tax debt and his requirement to meet it by periodic payments of $62.90 per week and the only challenge in respect of the credit card payments was an inquiry as to what the debt related to, to which he replied “that was for furniture, a laptop computer”.

9. There was clearly a dispute in the evidence between the husband and a witness Mr M-D as to the manner in which the husband had given Mr M-D money to pay for the husband’s bills during his absence while serving overseas.  The husband’s evidence was that Mr M-D paid accounts on the husband’s behalf and the husband reimbursed him when he returned from service overseas.  Mr M-D’s evidence was that the husband had left money with him before going on overseas duty.  Whilst the trial judge considered this dispute to be of significance so much so that in disbelieving the husband’s version of events he concluded that the husband was not a witness of credit who could be believed in relation to his expenditure, it seems to us that ultimately the resolution of that dispute had little to do with the proper orders that the trial judge should have made in the proceedings. 

10. As already indicted there was clearly no suggestion that the husband had any source of income other than his salary and pension.  Any savings he had managed to accrue would have been accrued from that source.  There was nothing untoward in the modest amounts being claimed by the husband for self-support.  We see no reason to reject his evidence as to income and expenditure which was not even challenged in cross-examination.  Accordingly, whilst we have not had the benefit of seeing the witnesses and enjoying the advantage of the trial judge when determining the dispute based upon the manner in which they gave evidence, it seems ultimately that little turned upon it.  The husband had a finite source of income.  He had to meet obligations and expenditure including his own support and the support of his children; and the surplus was available for maintenance.

11. In the circumstances there will be leave to appeal and the appeal will be allowed.  Whilst we have given consideration to allowing the whole of the appeal in relation to the lump sum order, given that there was no challenge to the wife’s scant evidence that she was in immediate need of $1,000 to repair the car, and given that there was some scant evidence concerning the husband’s capacity to meet a modest lump sum, we propose to allow the appeal in relation to the lump sum only in part and limit the obligation to make a payment of $1,000.  The issue of whether the repairs to the sink were needed remained unresolved.

12. As to the periodic sum, the calculations we have set out above indicate a capacity to meet an order for $120 but that allows no elasticity at all in the husband’s figures to meet reasonable but unforeseen expenditure.  We think a small sum should be allowed for such contingencies and that the appropriate order that the trial judge should have made in September 2006 was for periodic maintenance in a sum of $110 commencing as and form 1 October 2006 until the hearing and determination of the property proceedings or further order.

13. We have been advised that the property proceedings are fixed for hearing in the Federal Magistrates Court in September 2007.  We were also told from the Bar table that the circumstances of each of the parties have dramatically changed since September 2006.  We have received correspondence from the wife’s solicitors indicating that the home has been sold and that settlement of the home took place in April 2007.

14. Given that the finances of the parties are to be examined in the proceedings which are about to commence in the Federal Magistrates Court it would seem to be disproportionate for us to now require up to date evidence of the parties’ financial circumstances throughout the period from 1 October 2006 to the present time to determine what orders if any should have governed the entire relationship between the parties over that time.  Suffice to say that the order that we are pronouncing in these proceedings is the order that the trial judge should have made as at 27 September 2006.  Each of the parties is still at liberty to file an application seeking to vary that interim spousal maintenance order for any part of the period after 1 October 2006 based upon the changed circumstances of the parties.  We would hope any such application would be dealt with at the same time as the property proceedings and avoid a duplication of proceedings and any unnecessary expense.

COSTS APPEAL AND COSTS OF THE APPEAL

1. At the hearing of the appeal counsel for the wife conceded that in the event that the trial judge’s orders were substantially changed, the orders made for costs by the trial judge could not stand and that an appropriate order would be that each party pay their own costs of the proceedings before the trial judge.  Each of the parties also sought certificates relating to the appeal under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

2. The concession made by counsel for the respondent wife seems to us to be an appropriate one. The wife had little choice to bring the maintenance proceedings but given the ambit of her claim the husband had little choice but to defend them. The circumstances of the parties are very modest indeed and there does not appear, in our view, any circumstances that would make it appropriate to depart from the provisions of s 117(1) that each party to proceedings under the Act should bear his or her own costs.

3. The appeal having succeeded on a question of law, it is appropriate to grant the parties the relevant costs certificates.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate:

Date:  18 October 2007