FAMILY COURT OF AUSTRALIA
| KOYROYSHS & KOYROYSHS | [2018] FamCA 840 |
| FAMILY LAW – PROPERTY – Interim application – Where the wife seeks orders for lump sum spousal maintenance – Where, in the alternative, the wife seeks orders for periodic spousal maintenance – Where the wife has received considerable funds by way of partial distributions of property to date – Where the wife has primary care of the parties’ three year old child – Where the child spends time with the husband two days per week – Where the wife contends she is unable to work as a result of her parental responsibilities with regard to the parties’ child – Where the wife contends that the husband is not exercising his full income earning capacity – Where the husband contends that the wife is able to work on the days that the child is in his care – Court finds that the wife is unable to adequately support herself – Court finds that the husband has capacity to pay spousal maintenance – Order for periodic spousal maintenance made. |
| Family Law Act 1975 (Cth) ss. 72, 75, 80 |
| Brown and Brown [2005] FamCA 1165 Budding & Budding [2009] FamCAFC 165 Edgar & Strofield [2016] FamCAFC 93 Hall v Hall (2016) 257 CLR 490 Hyman v Hyman [1929] All ER 245 at 258 Maroney & Maroney [2009] FamCAFC 45 McCrossen & McCrossen (2006) FLC 93-283 Mitchell & Mitchell (1995) FLC 92-601 Saxena and Saxena (2006) FLC 93-268 Stein v Stein (2000) FLC 93-004 Vautin & Vautin (1998) FLC 92-827 |
| APPLICANT: | Ms Koyroyshs |
| RESPONDENT: | Mr Koyroyshs |
| FILE NUMBER: | SYC 2276 of 2016 |
| DATE DELIVERED: | 18 October 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 6 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Messner |
| SOLICITOR FOR THE APPLICANT: | Consort Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | First Choice Family Lawyers |
Orders
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
Pursuant to section 74 of the Family Law Act 1975 (Cth), within seven (7) days, the husband commence paying to the wife, the amount of $1,041 per week by way of periodic spousal maintenance.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Koyroyshs& Koyroyshs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2276 of 2016
| Ms Koyroyshs |
Applicant
And
| Mr Koyroyshs |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for lump sum spousal maintenance brought by the wife following the breakdown of the parties’ relationship…
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- Koyroyshs and Koyroyshs [2018] FamCA 840
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- [2018] FamCA 840
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CaseChat Overview and Summary
The primary legal issue before the court was to assess the wife's weekly expenses and needs for the purpose of calculating interim spousal maintenance, considering the evidence presented by both parties and the standard of proof applicable in civil proceedings. This involved scrutinising specific expenditure claims made by the wife, such as those for medical and dental treatment, holidays, and appliances, furniture, and fixtures, as well as other claimed expenses like income tax, loan repayments, and credit card payments. The court also had to consider the husband's income in its assessment.
McClelland J applied the ordinary standard of proof in civil proceedings, as set out in section 140 of the Evidence Act 1995 (Cth), noting that while evidence for interim orders need not be as extensive as for final orders, claims must still be substantiated. The court found that while the wife's Financial Statement was evidence of her expenditure, certain items required further substantiation, particularly where challenged by the husband. The court allowed a reasonable amount for medical and dental expenses, and for holidays, but disallowed claims for appliances, furniture and fixtures, income tax, loan repayments to her mother, and credit card payments due to a lack of evidentiary basis. After calculating the wife's net weekly expenses, which totalled $1,084, and considering the husband's reported average weekly income of $999, the court made an order for interim spousal maintenance.
Pursuant to section 74 of the Family Law Act 1975 (Cth), the court ordered that the husband commence paying the wife $1,041 per week by way of periodic spousal maintenance within seven days, pending further order.
Orders
Orders of the court
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
1.
Pursuant to section 74 of the Family Law Act 1975 (Cth), within seven (7) days, the husband commence paying to the wife, the amount of $1,041 per week by way of periodic spousal maintenance.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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