Ludwig & Ludwig - [2022] FedCFamC1F 378

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ludwig & Ludwig [2022] FedCFamC1F 378

File number(s): SYC 7386 of 2017

Judgment of: REES J

Date of judgment: 16 June 2022

Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE – Spousal maintenance order expired – Fresh application for spousal maintenance filed by the wife – More than 12 months post-divorce – Subject to leave under s 44(3) of the Act, the power of the Court to make orders for spousal maintenance is not exhausted – Court not satisfied the wife was unable to support herself without an income tested pension, allowance or benefit pursuant to s 44(4)(b) of the Act – Application for spousal maintenance dismissed.

Legislation: Family Law Act 1975 (Cth) ss 44(3), 44(4)(b), 83(1)

Cases cited:
Atkins & Hunt [2016] FamCAFC 230

Clayton & Bant (2020) 385 ALR 41

Mehta & Crimmins [2021] FedCFamC1A 73

Welland & Hawthorn [2021] FedCFamC1A 43

Division: Division 1 First Instance

Number of paragraphs: 53

Date of last submission/s: 10 June 2022

Date of hearing: 27 May 2022

Place: Sydney

Counsel for the Applicant: Mr Lawrence

Solicitor for the Applicant: Tiyce & Lawyers

Counsel for the Respondent: Mr Ahmad

Solicitor for the Respondent: Broun Abrahams Burreket
ORDERS

SYC 7386 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LUDWIG

Applicant

AND:
MR LUDWIG

Respondent

ORDER MADE BY:

REES J

DATE OF ORDER:

16 JUNE 2022

THE COURT ORDERS:
1.That the application of the wife filed 15 April 2021 be dismissed.
2.That the applications for costs of the wife and the husband be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ludwig & Ludwig has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:

Ms Ludwig (“the wife”) and Mr Ludwig (“the husband”) separated in January 2017 and final orders were made in relation to their financial affairs on 25 June 2018. Order 22 of those orders provides for the husband to pay the wife spousal maintenance in the sum of $1,350 per week until 31 December 2020.
By an Initiating Application filed 15 April 2021, the wife seeks an order for spousal maintenance in the sum of $1,600 per week for a period of five years and an interim order for spousal maintenance in the same amount.
The…

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 Ludwig & Ludwig

Details

AGLC: Ludwig & Ludwig [2022] FedCFamC1F 378
Case: [2022] FedCFamC1F 378
Decision Date

CaseChat Overview and Summary

The case of Ludwig & Ludwig was heard in the Federal Circuit and Family Court of Australia, Division 1. The applicant, Ms Ludwig, sought an order for spousal maintenance from her former husband, Mr Ludwig, more than 12 months after their divorce. The primary issue before the court was whether the power of the court to make spousal maintenance orders was exhausted by the prior orders made in 2018. If not, the court had to determine if the applicant needed leave to make a fresh application, the relevant date for assessing her eligibility for leave, whether she satisfied the requirements for leave, and if the matter should be dealt with on an interim basis.

The court first examined if the power of the court to make spousal maintenance orders had been exhausted. It concluded that the power was not exhausted as the statutory rights of the applicant to seek orders under the Family Law Act 1975 (Cth) could be exercised multiple times and subject to leave, over many years. The court found that the applicant was required to seek leave to make a fresh application for spousal maintenance since she sought a different order from the one made in 2018. The court noted that leave could be granted at any time, even if proceedings had already been instituted.

The court then assessed the relevant date for determining if the applicant satisfied the requirements for leave under section 44(4)(b) of the Family Law Act 1975 (Cth). It held that the operative date was 1 January 2021, when the spousal maintenance order ceased to have effect. The court found that the applicant had not satisfied the Court that she would have been unable to support herself without an income-tested pension, allowance or benefit as at 1 January 2021. Consequently, the application for spousal maintenance was dismissed.

Lastly, the court dismissed the application for costs from both parties, considering it appropriate not to order the applicant to pay the respondent's costs due to the significant disparity in their incomes.

Orders