Moller & Moller - [2017] FamCA 841

FAMILY COURT OF AUSTRALIA

MOLLER & MOLLER

[2017] FamCA 841

FAMILY LAW – SPOUSAL MAINTENANCE – Where the husband currently pays the majority of the children’s expenses – Where the wife currently receives $2,300 from the husband each week – Where the husband is currently making all mortgage and loan repayments – Where the husband must be taken to concede that the wife is unable to support herself adequately as he seeks orders that he pay spousal maintenance – Where the husband has the capacity to pay spousal maintenance – Where the wife is not entitled to be maintained to the same standard of living as the parties enjoyed prior to separation – Where the wife has the care of the parties’ two school aged children – Where the wife has the capacity to work – Where $700 per week is adequate to cover the wife’s personal expenses in addition to the costs currently paid by the husband – Orders made as sought by the husband.

Family Law Act 1975 (Cth) ss 72, 74, 75, 79

Brown and Brown (2007) FLC 93-316

Clauson and Clauson (1995) FLC 92-595
Curnow & Curnow (unreported, Family Court of Australia, Full Court, 28 April 1997)
Eliades and Eliades (1981) FLC 91-022
In the Marriage of Bevan (1995) FLC 92-600; (1993) 19 Fam LR 35
N & N (1997) FLC 92-782
Nutting and Nutting (1978) FLC 90-410
Robinson and Willis (1982) FLC 91-215

APPLICANT:

Ms Moller

RESPONDENT:

Mr Moller

FILE NUMBER:

PAC

1244

2017

DATE DELIVERED:

23 October 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Picker

SOLICITOR FOR THE APPLICANT:

Peter Dawson & Associates

COUNSEL FOR THE RESPONDENT:

Ms Judge

SOLICITOR FOR THE RESPONDENT:

Bricknell Legal

Orders

That the husband pay to the wife by way of spousal maintenance the sum of $700 per week, commencing 14 days from the date of this order and concluding on 31 August 2019.
That the husband, by way of spousal maintenance, continue to pay all interest instalments in respect of the Westpac Bank Home Loan and Westpac Bank Equity Loan secured over the Suburb B Property as and when they fall due, concluding on the earlier of 31 August 2019 or until the settlement date for the sale of the Suburb B Property.
If either party seeks an order as to costs they are to file and serve written submissions as to costs with an accompanying affidavit within 14 days from this date and the other party file and serve any written submissions and accompanying affidavit in reply within a further 14 days with judgment as to costs thereafter reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moller & Moller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law…

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.

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Details

AGLC: Moller & Moller [2017] FamCA 841
Case: [2017] FamCA 841
Decision Date: 23 October 2017

CaseChat Overview and Summary

In the matter of *Moller & Moller*, Hannam J of the Family Court of Australia considered an application for spousal maintenance. The specific details of the dispute between the husband and wife are not fully elaborated in the provided text, but the orders indicate a financial disagreement concerning ongoing support obligations.

The primary legal issue before the court was the quantum and duration of spousal maintenance to be paid by the husband to the wife. This included determining a weekly payment amount and the continuation of mortgage payments on a jointly held property. The court also addressed the potential for separate applications regarding costs.

Hannam J ordered the husband to pay the wife $700 per week by way of spousal maintenance, commencing 14 days from the date of the order and concluding on 31 August 2019. Additionally, the husband was ordered to continue paying all interest instalments on the Westpac Bank Home Loan and Westpac Bank Equity Loan secured over the Suburb B Property until the earlier of 31 August 2019 or the settlement date for the sale of that property. The court also stipulated a process for parties seeking costs, requiring written submissions and affidavits to be filed within specified timeframes, with judgment as to costs to be reserved.

Orders

Orders of the court

That the husband pay to the wife by way of spousal maintenance the sum of $700 per week, commencing 14 days from the date of this order and concluding on 31 August 2019.

That the husband, by way of spousal maintenance, continue to pay all interest instalments in respect of the Westpac Bank Home Loan and Westpac Bank Equity Loan secured over the Suburb B Property as and when they fall due, concluding on the earlier of 31 August 2019 or until the settlement date for the sale of the Suburb B Property.

If either party seeks an order as to costs they are to file and serve written submissions as to costs with an accompanying affidavit within 14 days from this date and the other party file and serve any written submissions and accompanying affidavit in reply within a further 14 days with judgment as to costs thereafter reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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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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