Koyroyshs and Koyroyshs - [2018] FamCA 840

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…

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 Koyroyshs and Koyroyshs

Details

AGLC: Koyroyshs and Koyroyshs [2018] FamCA 840
Case: [2018] FamCA 840
Decision Date: 18 October 2018

CaseChat Overview and Summary

In this matter before McClelland J, the dispute concerned an application for interim spousal maintenance. The wife sought periodic spousal maintenance from the husband, and the court was required to determine the appropriate amount to be paid pending further orders.

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:

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

Full text does not contain this section.

Evidence

Evidence Before The Court

In Hall v Hall (supra), the plurality referred to the relevant extract from Redman & Redman (1987) FLC 91-805 and said:No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). In that context, while the wife’s Financial Statement is evidence of her expenditure, in circumstances where certain items of expenditure have been challenged by the husband and no documentary evidence has been produced to substantiate that expenditure, it is appropriate to consider the reasonableness of the wife’s claims. In terms of the wife’s expenditure in relation to the item “Medical, dental and optical”, the wife contends that, in 2017, she was diagnosed with major dental issues which have required her to undergo several surgeries. The total cost of that treatment to date is $5,000. The wife contends that the estimated total cost of that treatment is $30,000 and that if there is any delay in her receiving that treatment, her condition will worsen. The husband contends that the wife maintains private health insurance and that she has not established the evidentiary basis for those expenses. There is, with respect, substance to the husband’s contentions. However, it is reasonable to expect that the wife will incur medical and dental expenses above that which she may claim through her private health insurance. In these interim proceedings, I am satisfied that an amount of $20 per week, being the amount claimed by the husband for his own expenses in respect to that item, is appropriate. Counsel for the husband further submitted that the wife has not established the basis for claiming $32 for holidays or $40 for appliances, furniture and fixtures. I am satisfied that an amount of $20 per week in respect to holidays is not unreasonable. I respectfully agree that the wife has not established the basis upon which she claims an amount of $40 per week in respect to appliances, furniture and fixtures and that item will be removed. Counsel for the wife acknowledged that there was no evidence to support the wife’s claimed weekly expenses in relation to income tax, loan repayments to her mother or credit card payments. I will, therefore, remove those items of expenditure. I, therefore, find that the wife’s weekly expenses are to be assessed, as follows:a)Rent at $500;b)Mortgage on the Tasmania property at $300;c)Rates, land tax and agents fees at $63;d)Comprehensive third party insurance at $9;e)Private health insurance at $22; Those figures total $1,404. From that amount it is necessary to deduct the rental income that the wife receives from the Tasmania property of $320. As a result, the wife’s weekly need totals $1,084. The husband’s Financial Statement lists his average estimated weekly income as being $999. That figure is derived from rental income of $627, interest payments of $173, income from his business M Pty Ltd of $192 and dividends of $7.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.