Maitland & Fraley

Case [2021] FamCA 593

FAMILY COURT OF AUSTRALIA

Maitland & Fraley [2021] FamCA 593

File number(s): ADC 1428 of 2021
Judgment of: BERMAN J
Date of judgment: 11 August 2021
Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the applicant seeks interim spousal maintenance – Where the respondent seeks the application be dismissed – Where the applicant satisfies the threshold test – Consideration of s 75(2) factors – Where the respondent disputes the applicant’s income – Where the applicant has funds available to her – Where it is not necessary to consider the respondent’s ability to pay – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 72(1), 74(1), 75(2)
Cases cited:

Hall v Hall (2016) 257 CLR 490

Maroney & Maroney [2009] FamCAFC 45

McCrossen & McCrossen (2006) FLC 93-283

Mitchell & Mitchell (1995) FLC 92-601

Stein & Stein (2000) FLC 93-004

Number of paragraphs: 50
Date of hearing: 30 June 2021 and 8 July 2021   
Place: Adelaide
Counsel for the Applicant: Mr McGinn
Solicitor for the Applicant: Adelta Legal
Counsel for the Respondent: Ms Lewis
Solicitor for the Respondent: Clelands Lawyers Adelaide

ORDERS

ADC 1428 of 2021
BETWEEN:

MS MAITLAND

Applicant
AND:

MR FRALEY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

11 AUGUST 2021

THE COURT ORDERS THAT:

1.The applicant’s application for spousal maintenance is 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maitland & Fraley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BERMAN J

INTRODUCTION

  1. By Initiating Application filed 24 March 2021, Ms Maitland (“the applicant”) seeks final orders for settlement of property in such terms as the Court deems just, a general order for spousal maintenance and an order by way of departure from the administrative assessment such that the husband pay child support at the rate of $18,200 per annum and non-periodic support in respect of the children’s school fees and expenses.

  2. Relevant to the current proceedings, the applicant seeks an order by way of interim spousal maintenance that the respondent pay to her the sum of $3,200 per month.

  3. By Response filed 7 May 2021, Mr Fraley (“the respondent”) proposes that by way of final orders for property settlement, the non-superannuation property of the parties be divided 55 per cent to the applicant and 45 per cent to the respondent with the superannuation entitlements of the parties to be equalised.

  4. The respondent seeks that the applicant’s interim application for spousal maintenance be dismissed.

    BACKGROUND

  5. The parties commenced cohabitation in October 2000 and were married in 2014.  There are two children of the…

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Maitland & Fraley [2021] FamCA 593
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[2021] FamCA 593
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CaseChat Overview and Summary

In the matter of *Maitland & Fraley*, Ms Maitland (the applicant) sought interim spousal maintenance from Mr Fraley (the respondent). The respondent sought the dismissal of the application. The parties had cohabited from 2000, married in 2014, and separated in May 2017, with the applicant vacating the former matrimonial home in September 2017. The applicant contended she had not worked full-time since the birth of the parties' first child in 2005, and following a heart attack in September 2019, had been working part-time. The respondent disputed the applicant's assertions regarding her capacity for full-time employment.

The court was required to determine whether the applicant had satisfied the threshold test for interim spousal maintenance under section 72(1) of the *Family Law Act 1975* (Cth). This involved assessing whether the applicant was unable to support herself adequately, having regard to the relevant matters listed in section 75(2) of the Act. The court also needed to consider the evidence regarding the applicant's income, property, financial resources, and her physical and mental capacity for gainful employment.

Berman J applied the principles outlined in *Hall v Hall*, which established that a court considering an interim spousal maintenance application must be satisfied, on the balance of probabilities, that the threshold requirement in section 72(1) is met. This requires consideration of the relevant section 75(2) factors, including the income, property, financial resources, and capacity for gainful employment of each party. In this instance, the court found that the applicant had funds available to her, specifically a lump sum of $223,996 received as beneficiary of her late father's estate. Given these available funds, the court determined it was not necessary to consider the respondent's ability to pay.

Consequently, the applicant's application for interim spousal maintenance was dismissed.

Orders

Orders of the court

ADC 1428 of 2021

BETWEEN:

MS MAITLAND

Applicant

AND:

MR FRALEY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

11 AUGUST 2021

THE COURT ORDERS THAT:

1. The applicant’s application for spousal maintenance is 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The respondent seeks that the applicant’s interim application for spousal maintenance be dismissed.BACKGROUND The parties commenced cohabitation in October 2000 and were married in 2014. There are two children of the marriage, namely X born in 2005 and Y born in (collectively “the children”). The parties separated according to the respondent on 23 May 2017. The applicant formally vacated the former matrimonial home at B Street, Suburb C (“the Suburb C property”) in September 2017 and moved to her present accommodation at D Street, Suburb E (“the rental property”). At the date of commencement of cohabitation the applicant was in full-time employment at a local business. The respondent also worked full-time. Following the conception of the parties’ first child, the applicant took maternity leave at thirty four weeks. The applicant contends that she has not worked on a full-time basis since the birth of the first child and has not returned to full-time employment. The respondent does not accept the applicant’s summary of her ability and capacity for full-time employment and contends that she is capable of working full-time and that this is demonstrated by the hours spent on her interest in various hobbies. The respondent acknowledged that the applicant did not work for several years while the children were young however, he says that the topic of the applicant taking up paid employment was often discussed but rejected by her. After separation, the applicant returned to work as a public servant on contract with a government department. Her employment was full-time until August 2019. The applicant contends that in September 2019 she suffered a heart attack and was not able to resume employment until February 2020. Following her recovery, the applicant commenced a part-time contract role with another government department which averages a little less than twenty hours per week as and from December 2020. In June 2020, the applicant commenced part-time employment with G Company averaging about fifteen hours per week. The respondent continues working for F Company. His employment is full-time. The parties are not agreed as to the construct of the asset pool comprising assets and liabilities but both agree it is not insignificant and is predominantly comprised of the parties’ interest in the Suburb C property and the property at H Street, Suburb J (“the Suburb J property”). The parties also hold interest in various bank accounts and in particular the sum of about $257,048 in a conveyancer’s trust account following the recent sale of three investment properties. An important focus of the interim proceedings is the extent to which the lump sum of $223,996, recently received by the applicant as beneficiary of her late father’s estate, is relevant to the applicant’s claim for spousal maintenance.INTERIM SPOUSAL MAINTENANCE In the decision of Hall v Hall (2016) 257 CLR 490 (“Hall v Hall”) the High Court set out the appropriate approach in considering an application for interim spousal maintenance as follows:3.… The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That subsection provides that “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)”.4.The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That subsection provides that, “[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part”.5.A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters (s 75(1)). Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.…8.Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. 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). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to the relevant matter referred to in s 75(2).(Footnotes omitted)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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