MacDougal & Benson (No. 2) - [2013] FamCA 631

FAMILY COURT OF AUSTRALIA

MACDOUGAL & BENSON (NO. 2)

[2013] FamCA 631

FAMILY LAW – SPOUSAL MAINTENANCE – CHILD SUPPORT – Urgent spousal maintenance and urgent child support – Parties seek orders for distribution of trust funds on a priority of debt and urgency arrangement – Orders for maintenance but not litigation funding made.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Redman and Redman (1987) FLC 91-805
Williamson and Williamson (1978) FLC 90-575

APPLICANT:

Mr MacDougal

RESPONDENT:

Ms Benson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

1674

2013

DATE DELIVERED:

23 August 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

8 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

Forte Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr St John

SOLICITOR FOR THE RESPONDENT:

Lennon Mazzeo Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That out of the trust funds held on behalf of the parties (said to be $456,000) the following be paid:
(a)$3360 being six weeks at the rate of $560 per week for urgent spousal maintenance;
(b)The payment of the rates and utilities currently outstanding totalling $2500;
(c)The sum of $30,000 to the wife to purchase a motor vehicle;
(d)The sum of $30,000 to the husband to purchase a motor vehicle;
(e)The sum of $25,000 towards the Westpac Bank debts encumbering the Suburb H property; and
(f) The husband’s credit card debt limited to the extent of $67,000.
That in addition to releasing the wife from the undertaking given to the Court on 8 March 2013, paragraphs 1 and 2 of the minutes of consent orders annexed to the said order are discharged as of this date and not retrospectively.
That to the extent that the wife seeks spousal maintenance on a periodic basis, the amended application for such orders shall be listed in the Senior Registrar’s list of cases providing the amended application in a case is filed by no later than 4.00pm on 18 September 2013.
That in addition to the sums paid out as earlier indicated, the following be also paid:
(a)$650 to Ms N for therapeutic counselling;
(b)$1000 to be retained by Forte Family Lawyers for further therapeutic counselling;
(c)$5000 to be paid to Dr A to prepare psychiatric assessments of both the husband and the wife.
That the applications for interim orders are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
To the extent that it is necessary to say so, the application of the wife under s 139 of the Child Support (Assessment) Act 1989 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym MacDougal & Benson (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT…

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 MacDougal & Benson (No. 2)

Details

AGLC: MACDOUGAL & BENSON (NO. 2) [2013] FamCA 631
Case: [2013] FamCA 631
Decision Date: 23 August 2013

CaseChat Overview and Summary

In *MacDougal & Benson (No. 2)*, Cronin J considered applications for interim spousal maintenance and other financial relief between the parties. The dispute concerned the distribution of trust funds and the payment of various debts and expenses pending final resolution of the matter.

The court was required to determine the extent to which urgent spousal maintenance should be paid, the payment of outstanding rates and utilities, the provision of funds for the purchase of motor vehicles for both parties, and the discharge of specific debts, including those encumbering a property and a husband's credit card debt. Further issues included the wife's application for periodic spousal maintenance and the payment for therapeutic counselling and psychiatric assessments.

Cronin J ordered the payment of six weeks of urgent spousal maintenance, the outstanding rates and utilities, and specific sums for motor vehicles for each party. The court also ordered the payment of a portion of the Westpac Bank debts and limited the husband's credit card debt repayment. The wife's undertaking to the court was released, and certain consent orders were discharged. The application for periodic spousal maintenance was adjourned for listing, with a deadline for filing an amended application. Payments were also ordered for therapeutic counselling and psychiatric assessments. The applications for interim orders were otherwise dismissed, and the wife's application under s 139 of the *Child Support (Assessment) Act 1989* was dismissed.

Orders

Orders of the court

That out of the trust funds held on behalf of the parties (said to be $456,000) the following be paid:

(a) $3360 being six weeks at the rate of $560 per week for urgent spousal maintenance;

(b) The payment of the rates and utilities currently outstanding totalling $2500;

(d) The sum of $30,000 to the husband to purchase a motor vehicle;

(e) The sum of $25,000 towards the Westpac Bank debts encumbering the Suburb H property; and

(f) The husband’s credit card debt limited to the extent of $67,000.

That in addition to releasing the wife from the undertaking given to the Court on 8 March 2013, paragraphs 1 and 2 of the minutes of consent orders annexed to the said order are discharged as of this date and not retrospectively.

That to the extent that the wife seeks spousal maintenance on a periodic basis, the amended application for such orders shall be listed in the Senior Registrar’s list of cases providing the amended application in a case is filed by no later than 4.00pm on 18 September 2013.

That in addition to the sums paid out as earlier indicated, the following be also paid:

(a) $650 to Ms N for therapeutic counselling;

(b) $1000 to be retained by Forte Family Lawyers for further therapeutic counselling;

That the applications for interim orders are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

To the extent that it is necessary to say so, the application of the wife under s 139 of the Child Support (Assessment) Act 1989 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.