Macarthur & Macarthur (No 2)

Case [2023] FedCFamC1F 74

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Macarthur & Macarthur (No 2) [2023] FedCFamC1F 74

File number(s): BRC 6154 of 2020
Judgment of: CHRISTIE J
Date of judgment: 17 February 2023
Catchwords: FAMILY LAW – SPOUSE MAINTENANCE – Where interim spouse maintenance orders were made – Where those orders provided that the husband only pay spouse maintenance when he was in receipt of income– Where both parties now seek to vary those orders – Where the wife failed to put forward relevant evidence of her financial circumstances.
Legislation:

Family Law Act 1975 (Cth) ss 72, 74, 83

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.08, 6.06

Division: Division 1 First Instance
Number of paragraphs: 64
Date of hearing: 17 February 2023
Place: Sydney
The Applicant: Litigant in person
The Respondent: Litigant in person

ORDERS

BRC 6154 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MACARTHUR

Applicant
AND:

MR MACARTHUR

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

17 February 2023

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1.Order 1 of the Orders of 3 September 2021 be varied to read:

(a)the husband pay to the wife by way of spouse maintenance the sum of $400 per week if he is employed on site; and

(b)the husband pay to the wife by way of spouse maintenance the sum of $200 per week if he is employed otherwise.

2.The wife’s Application in a Proceeding and the husband’s Response are otherwise 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 Macarthur & Macarthur has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CHRISTIE J:

  1. These are proceedings of an interim nature. They relate to spouse maintenance.

  2. Mr and Mrs Macarthur are currently awaiting a final hearing of their competing applications for property adjustment.

  3. The final hearing is listed on 31 October 2023 for three days.

  4. On 3 September 2021 his Honour Justice Altobelli made interim orders following a contested hearing. Order 1 of those orders required the husband to pay spouse maintenance to the wife.

  5. By application filed 7 February 2023, the wife seeks to vary Order 2 of the orders made on 3 September 2021. The wife sought that that application be determined with some…

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Macarthur & Macarthur (No 2) [2023] FedCFamC1F 74
Case
[2023] FedCFamC1F 74
Decision Date

CaseChat Overview and Summary

The case of Macarthur & Macarthur (No 2) involves the husband and wife, who are separated with a child, seeking variations to an existing maintenance order. The wife filed an application to vary the existing maintenance order, which was initially heard and determined on 26 May 2021. The husband had filed an application for a stay of those orders on 23 July 2021, which was heard and determined by Justice Altobelli on 3 September 2021. The husband's appeal was subsequently discontinued on 6 October 2021, but the orders of 3 September 2021 remained in effect as they were treated as a variation application rather than a stay. The wife filed an Amended Application on 16 February 2023, which the husband claimed prejudiced him due to the late filing and lack of opportunity to review the new affidavit. The Court did not permit the wife to rely on the further affidavit, as it would have breached the rules regarding the number of affidavits per witness and the filing deadlines.

The legal issue before the Court was whether the existing maintenance order should be varied, increased, decreased, discharged, or suspended. The Court considered the provisions of s 83 of the Family Law Act 1975 (Cth) and the changes in circumstances since the order was made. The Court found that there had been several changes in circumstances since the maintenance order was made, including the parties' daughter commencing formal education and the husband experiencing periods of unemployment. The wife argued that the order should be discharged because it was ambiguous and the child support agency could not collect payments during periods of unemployment. The husband argued for a change in the quantum of maintenance but also wanted the power to suspend payments during unemployment to remain in the order.

The Court determined that the existing maintenance order should be varied. It found that the wife had not established that the husband's pattern of work had changed such that it would be appropriate for his obligation to continue even when he is out of work. The Court also noted that the husband had filed a financial statement dealing with his unemployment but did not provide information on his potential income if employed. The husband's contract had finished in late 2022, and he had expected to return to work soon after, but the site he had been working was no longer available, and he was given a separation certificate. The husband provided evidence that he was usually able to pick up contractual work on another site, but this had not been the case. The Court concluded that the changes in circumstances warranted a variation to the existing maintenance order.

The Court made orders varying the existing maintenance order. It found that the wife had not established that the husband's pattern of work had changed such that it would be appropriate for his obligation to continue even when he is out of work. The Court also noted that the husband had filed a financial statement dealing with his unemployment but did not provide information on his potential income if employed. The Court concluded that the changes in circumstances warranted a variation to the existing maintenance order.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the husband’s Response he seeks that the wife’s Application be dismissed but he also seeks orders to vary the existing maintenance order.BACKGROUND The husband lives in Australia. The wife and the parties’ child live overseas. The parties’ daughter is turning six years old and attends kindergarten. The Court heard and determined contested proceedings for spouse maintenance on 26 May 2021. The husband filed an application for a stay of those orders on 23 July 2021 (in the context of an appeal) which stay application was heard and determined by his Honour Justice Altobelli on 3 September 2021. Although, as his Honour observed in his reasons for judgment, the husband’s application, although framed as a stay, read as though it were in reality an application to vary the interim orders. The husband’s appeal was discontinued on 6 October 2021. As his Honour dealt with the husband’s application as a variation and not a stay, the orders of 3 September 2021 survived the discontinuance of the appeal.EVIDENCE The wife relied on an affidavit filed 6 February 2023. At the hearing she indicated she had filed an Amended Application in a Proceeding and affidavit on 16 February 2023. The husband indicated he had seen the amended application but not yet read the new affidavit, which appears to have been filed the morning of the hearing. The husband said he was prejudiced by the amendment. I accept that the amended application sought payment of a lump sum and changed the nature of the case the husband had to meet. The wife indicated she would not seek an adjournment but sought to continue today. As the husband had not yet had the opportunity to read the wife’s affidavit filed yesterday and in light of r 5.08(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), which only permits one affidavit per witness, and r 5.07, which requires filing two business days before the hearing, I did not permit her to rely on the further affidavit. She elected not to seek an adjournment. The wife did not file a financial statement. The husband relied on a Response to Application in a Proceeding and an affidavit and financial statement filed in accordance with the Court’s directions. Both parties made oral submissions.THE LAW A party seeking to vary an existing order for spouse maintenance must satisfy the provisions of s 83 of the Family Law Act1975 (Cth) (“the Act”). Section 83 provides:(1)If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:(a) made by the court; or(b)made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;the court may, subject to section 111AA:(c) discharge the order if there is any just cause for so doing;(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;(e) revive wholly or in part an order suspended under paragraph (d); or(f)subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.(1A)The court’s jurisdiction under subsection (1) may be exercised:(a)in any case—in proceedings with respect to the maintenance of a party to the marriage; or(b)if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or(c)if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.(2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:(a) that, since the order was made or last varied:(i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);(ii)the circumstances of the person liable to make payments under the order have so changed; or(iii)in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;as to justify its so doing;(b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;(ba)in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;(c)that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.(3)Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first‑mentioned order is made for the purpose of giving effect to this Part.(4)In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.(5)The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.(5A)In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:(a) the other party; or(b) any other person for the benefit of the other party.(6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.(6A)Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date, being moneys that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act.(6B)Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.(7)For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.(8)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

Evidence

Evidence Before The Court

As his Honour dealt with the husband’s application as a variation and not a stay, the orders of 3 September 2021 survived the discontinuance of the appeal.EVIDENCE The wife relied on an affidavit filed 6 February 2023. At the hearing she indicated she had filed an Amended Application in a Proceeding and affidavit on 16 February 2023. The husband indicated he had seen the amended application but not yet read the new affidavit, which appears to have been filed the morning of the hearing. The husband said he was prejudiced by the amendment. I accept that the amended application sought payment of a lump sum and changed the nature of the case the husband had to meet. The wife indicated she would not seek an adjournment but sought to continue today. As the husband had not yet had the opportunity to read the wife’s affidavit filed yesterday and in light of r 5.08(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), which only permits one affidavit per witness, and r 5.07, which requires filing two business days before the hearing, I did not permit her to rely on the further affidavit. She elected not to seek an adjournment. The wife did not file a financial statement. The husband relied on a Response to Application in a Proceeding and an affidavit and financial statement filed in accordance with the Court’s directions. Both parties made oral submissions.THE LAW A party seeking to vary an existing order for spouse maintenance must satisfy the provisions of s 83 of the Family Law Act1975 (Cth) (“the Act”). Section 83 provides:(1)If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:(a) made by the court; or(b)made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;the court may, subject to section 111AA:(c) discharge the order if there is any just cause for so doing;(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;(e) revive wholly or in part an order suspended under paragraph (d); or(f)subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.(1A)The court’s jurisdiction under subsection (1) may be exercised:(a)in any case—in proceedings with respect to the maintenance of a party to the marriage; or(b)if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or(c)if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.(2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:(a) that, since the order was made or last varied:(i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);(ii)the circumstances of the person liable to make payments under the order have so changed; or(iii)in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;as to justify its so doing;(b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;(ba)in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;(c)that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.(3)Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first‑mentioned order is made for the purpose of giving effect to this Part.(4)In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.(5)The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.(5A)In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:(a) the other party; or(b) any other person for the benefit of the other party.(6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.(6A)Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date, being moneys that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act.(6B)Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.(7)For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.(8)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

A party seeking orders relating to spouse maintenance (or responding to orders concerning spouse maintenance) must file a financial statement: r 6.06(5)(a) of the Rules.CONSIDERATION I am satisfied that there have been a number of changes in circumstances since the spouse maintenance order was made. Those include:(1)The parties’ daughter has commenced formal education. She is now in Kindergarten;(2)The husband has experienced a few periods of unemployment – some related to health and others to availability of work. Those changes warrant the Court examining the existing order to determine whether variation, increase, decrease, discharge or suspension are appropriate. I gather from the wife’s evidence that collection of spouse maintenance by the child support agency is hampered by orders which provide for the suspension of payments during periods of unemployment. The agency is (understandably) not able to make determinations as to a person’s employment status on a week by week or contract by contract basis. The wife says that the order which provides for suspension during periods of unemployment should be discharged because the ambiguity means she cannot rely on the agency to collect payments on her behalf. She also submitted that enforcement of the order through the Court would be onerous so she sought to remove the ambiguity in the order. The difficulty with this argument is that the wife has not established that the husband’s pattern of work has changed such that it would be appropriate that his obligation continue even when he is out of work. The husband says the quantum of spouse maintenance should change but his capacity to pay at a differential rate depending upon his source of work and the power to suspend if he is unemployed should be features of the order. At the time of the order for spouse maintenance the husband was employed as a tradesperson either away on site or in similar role locally. At the time of this hearing the husband is unemployed. The husband filed a financial statement. That financial statement deals with his unemployment. It does not deal with what income he might earn if he were employed. The husband had a contract which finished in late 2022. He told the wife that he expected to return to work soon after but the site he had been working was no longer available and he was given a separation certificate. He gives evidence that when that has occurred in the past he was usually able to pick up contractual work on another site but this has not been the case. He provided the wife with an email from H Company dated late 2022 which read:Hi [Mr Macarthur],We regret to inform you that we have no further work available for you at this point. Unfortunately, several [sites will become unavailable] in December/January.We thank you for your dedication and support over the past year. If we have another suitable position that comes up, we will have no hesitation in contacting you for the role. We hope that work will pick up again from the second quarter of 2023.…