FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Miles & Miles [2023] FedCFamC1F 779
File number(s): SYC 5669 of 2021 Judgment of: ALTOBELLI J Date of judgment: 14 September 2023 Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Previous interim orders for the wife’s rental to be met from a joint offset account – Where the offset account is now depleted – Husband’s application to vary previous spousal maintenance orders –Where the wife has not paid her taxation liability in circumstances where she made an undertaking to do so – It is ordered that the wife’s rental is to continue being met by joint funds, the husband’s application to vary spousal maintenance orders is dismissed and the wife is to meet her taxation liability. Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75, 83 Cases cited: AMP Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475; [1983] FCA 248
Bainbridge & Bainbridge [2016] FamCA 1049
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Saxena v Saxena (2006) FLC 93-268; [2006] FamCA 588
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 16 August 2023 Place: Sydney Counsel for the Applicant: Ms Jones Solicitor for the Applicant: Super & Super Lawyers Counsel for the Respondent: Ms Seric Solicitor for the Respondent: Pickering Pendleton ORDERS
SYC 5669 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MILES
Applicant
AND: MR MILES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Pending further order, the Respondent husband (“the husband”) is to do all things necessary to cause to be paid the Applicant wife’s (“the wife”) rental payments in the amount of $2,200 per week out of or from the parties’ joint assets or assets controlled by the parties (or one of them but in respect of which they have beneficial ownership) as and when it is due with such payments to be characterised as spousal maintenance.
2.If the husband fails to comply with his obligations pursuant to any spousal maintenance order, then within 14 days of the husband’s failure to comply, the husband is to do all things necessary to cause his Motor Vehicle 1 to be listed for sale by public auction and the net proceeds of sale paid to the wife in satisfaction of maintenance both accrued and prospective to the date of any further order, and for the purpose of giving effect to this order:
(a)The wife is to nominate the auction house within seven days of default of order;
(b)The husband is to deliver Motor Vehicle 1, keys, registration and service books to the nominated auction house within 14 days of his failure to comply;
(c)Within 14 days of his failure to comply with the orders the husband shall do all acts and things and sign all documents necessary to procure a sale of Motor Vehicle 1 by the nominated auction house no…
Continue reading Miles & Miles
Sign in free to access the full text
Details
- AGLC
- Miles & Miles [2023] FedCFamC1F 779
- Case
- [2023] FedCFamC1F 779
- Decision Date
CaseChat Overview and Summary
In this interim financial dispute between Miles and Miles, the wife, who is unemployed, has applied to the Family Court of Australia for urgent relief due to her financial hardship, including a depleted bank account and an inability to pay her rent. The husband, a media company director, has responded with his own application seeking variations to existing maintenance orders and the dismissal of some of these orders. The case revolves around allegations of financial non-disclosure and competing claims regarding the financial obligations of each party towards the other and their children. The court is tasked with determining the appropriate interim financial orders, considering the substantial evidence presented by both parties without making findings of fact or credibility due to the interim nature of the application.
The primary legal issues before the Court include whether the wife has satisfied the "gateway" requirement for spousal maintenance under section 72 of the Family Law Act 1975 (Cth), and if so, what amount of maintenance is reasonable. Additionally, the Court must consider the husband’s application to vary or discharge existing maintenance orders under section 83 of the Act, taking into account any material changes in circumstances or cost of living. The Court is also required to assess the wife's request for the husband to cover her tax liability and whether there has been sufficient financial disclosure by both parties.
In rendering its decision, the Court acknowledged the urgent nature of the wife’s financial situation and the competing allegations of financial non-disclosure. The Court highlighted the need for each party to bear the onus of proof for the orders they sought. While the Court could not make findings of fact or credibility, it assessed the material presented and made interim orders that it deemed appropriate under the circumstances. The Court noted that the wife had not demonstrated a satisfactory level of financial disclosure and that there were discrepancies in the financial information provided by both parties. Consequently, the Court made interim orders to address the wife’s immediate financial needs, pending further evidence and submissions at the final hearing.
The final orders of the Court include the provision of temporary spousal maintenance to the wife, the continuation of certain existing maintenance orders, and directives for the husband to provide further financial information. The Court emphasised that these orders were interim in nature and subject to change at the final hearing, where the Court will have the opportunity to make more comprehensive findings and orders.
The primary legal issues before the Court include whether the wife has satisfied the "gateway" requirement for spousal maintenance under section 72 of the Family Law Act 1975 (Cth), and if so, what amount of maintenance is reasonable. Additionally, the Court must consider the husband’s application to vary or discharge existing maintenance orders under section 83 of the Act, taking into account any material changes in circumstances or cost of living. The Court is also required to assess the wife's request for the husband to cover her tax liability and whether there has been sufficient financial disclosure by both parties.
In rendering its decision, the Court acknowledged the urgent nature of the wife’s financial situation and the competing allegations of financial non-disclosure. The Court highlighted the need for each party to bear the onus of proof for the orders they sought. While the Court could not make findings of fact or credibility, it assessed the material presented and made interim orders that it deemed appropriate under the circumstances. The Court noted that the wife had not demonstrated a satisfactory level of financial disclosure and that there were discrepancies in the financial information provided by both parties. Consequently, the Court made interim orders to address the wife’s immediate financial needs, pending further evidence and submissions at the final hearing.
The final orders of the Court include the provision of temporary spousal maintenance to the wife, the continuation of certain existing maintenance orders, and directives for the husband to provide further financial information. The Court emphasised that these orders were interim in nature and subject to change at the final hearing, where the Court will have the opportunity to make more comprehensive findings and orders.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
These reasons for judgment explain the orders that the Court has made in an interim financial dispute between the applicant wife (“the wife”) and the respondent husband (“the husband”).BACKGROUND The substantive application involves both parenting and property issues. The wife is 43 years old and deposes to being unemployed. The husband is 46 years old and describes himself as a director of a media company. The parties have three children, Y who is 14 years old, X who is 12 years old and Z who is 10 years old (“the children”). The parties began cohabitation in 2002 and were married in 2003 in Sydney. The parties separated on 25 August 2020 and their divorce was finalised in 2021. The wife commenced these proceedings on 6 August 2021. The wife filed the current Application in a Proceeding on 19 July 2023 and sought urgency on the basis that she only had $244 remaining in her bank account and the joint account that was being used to pay her rent pursuant to previous orders had now depleted to $0. The husband filed his Response to an Application in a Proceeding on 4 August 2023 and the interim hearing proceeded on 16 August 2023. This matter is listed for final hearing before me for six days commencing 8 April 2024. Thus, the orders made may only have a relatively short duration. This is an interim application where each party makes competing allegations about financial non-disclosure and certain acts and omissions. No cross-examination was possible. No findings of credibility or fact are possible. The Court will have to do the best it can with the material placed before it by the parties. This may involve forming impressions from the evidence, but that, of course, is not the same as making findings. Each party bore the onus of proof in relation to the matters they put before the Court and the orders they sought.COMPETING PROPOSALS In her Application in a Proceeding, the wife sought the following relief (summarised): (1)To be released from an undertaking she gave to the Court on 23 December 2022; (2)An order by way of lump sum maintenance that the husband pay her taxation liability of $58,005.07; (3)An order that the husband continue to pay by way of spousal maintenance $2,200 per week towards the wife’s rent; (4)Orders for the sale of the husband’s Motor Vehicle 1 in the event that he fails to comply with the above orders; and(5)A number of ancillary injunctions and orders. A preliminary observation can be made in relation to the third item above. There is already an order to this effect and the need for a further order is unclear but will be reviewed at the conclusion of these reasons. In the husband’s Response to an Application in a Proceeding he sought the following relief (summarised): (1)The dismissal/discharge of a number of the maintenance orders made on 6 September 2021 and 15 July 2022; (2)In the alternative to the above a variation of the orders for maintenance such that the husband pay to the wife $488 weekly; (3)The wife pay her outstanding tax liability from funds presently held by her; (4)The wife pay her rental out of funds presently held by her; and(5)The wife pay his costs on an indemnity basis.EVIDENCE BEFORE THE COURT
Evidence
Evidence Before The Court
In the husband’s Response to an Application in a Proceeding he sought the following relief (summarised): (1)The dismissal/discharge of a number of the maintenance orders made on 6 September 2021 and 15 July 2022; (2)In the alternative to the above a variation of the orders for maintenance such that the husband pay to the wife $488 weekly; (3)The wife pay her outstanding tax liability from funds presently held by her; (4)The wife pay her rental out of funds presently held by her; and(5)The wife pay his costs on an indemnity basis.EVIDENCE BEFORE THE COURT In support of her case, the wife relies upon the following documents:(a)Application in a Proceeding filed 19 July 2023;(b)Financial Statement filed 19 July 2023;(c)Her affidavit filed 8 August 2023;(d)Affidavit of Ms D filed 9 August 2023; and(e)Case outline filed 11 August 2023. In support of his case, the husband relies upon the following documents:(a)Response to an Application in a Proceeding filed 4 August 2023;(b)His affidavit filed 4 August 2023;(c)His supplementary affidavit filed 15 August 2023;(d)Amended Financial Statement filed 15 August 2023;(e)Case outline filed 15 August 2023; and (f)Minute of Order received 16 August 2023.APPLICABLE LAW Spousal maintenance is governed by s 72 of the Family Law Act 1975 (Cth) (“the Act”). In Hall v Hall (2016) 257 CLR 490 (“Hall v Hall”) at [3], the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, which provides:72 Right of spouse to maintenance(1)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 whether:(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or(c)for any other adequate reason.having regard to any relevant matter referred to in subsection 75(2). As noted by the High Court in Hall v Hall, the Applicant carries the onus of satisfying the Court on the balance of probabilities that she has satisfied the gateway requirement of s 72(1) of the Act. In Saxena v Saxena (2006) FLC 93-268, Coleman J explained at [39] that in determining whether to make an order for spousal maintenance, the Court should follow a four-step process, as follows:(1)Can the applicant support themselves adequately?(2)If not, what are the applicant’s reasonable needs?(3)What capacity does the respondent have to meet those needs?(4)What order is reasonable, having regard to s 75(2) of the Act? The husband seeks a modification to spousal maintenance orders pursuant to s 83 of the Act. It relevantly provides:83. (1)In proceedings with respect to the maintenance of a party to a marriage or of a child of a marriage, if there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of that party or child by the other party to the marriage-(a) made by the court; or(b)made by another court and registered in the first-mentioned court in accordance with the regulations, the court may-(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 sub-section (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.(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;(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 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; or(c)that material facts were withheld from the court that made the order from a court that varied the order or material evidence previously before such a court was false.(3)Sub-section (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 Commonwealth 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.(6)An order decreasing the amount of a periodic sum payable under an order or discharging an order shall not be expressed to be retrospective to a date earlier than 12 months before the date of the application for the variation or discharge.(7)For the purposes of this section, the court shall have regard to the provisions of sections 72, 75 and 76.(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
Full text does not contain this section.