Moloney and Beams - [2013] FCCA 85

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOLONEY & BEAMS

[2013] FCCA 85

Catchwords:
FAMILY LAW – Interim application for spousal maintenance – distinction between urgent and interim applications – nature of interim hearing – meaning of adequately – relevance of section 75(2) criteria – marked disparity in income of parties – reasonableness in all the circumstances – interim or partial property settlement – considerations of justice and equity.

Legislation:
Family Law Act 1975, ss.72; 74; 75(2); 77; 79(2)

Cases cited:
C & C (1996) FLC 92-651
Chapman & Chapman (1979) FLC 90-671
Ashton & Ashton (1982) FLC 91-285
Bevan & Bevan (1995) FLC 92-600
Redman v Redman (1987) FLC 91-805
Mitchell & Mitchell (1995) FLC 92-601
Kiesinger & Padget [2008] FamCAFC 23
Brown & Brown (2007) FLC 93-316

Applicant:

MS MOLONEY

Respondent:

MR BEAMS

File Number:

ADC 994 of 2012

Judgment of:

Judge Brown

Hearing date:

10 April 2013

Date of Last Submission:

10 April 2013

Delivered at:

Adelaide

Delivered on:

19 April 2013

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Herman Bersee

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Swan Family Lawyers

ORDERS

The conciliation conference fixed for 23 May 2013 is confirmed, together with the ancillary orders relating to it.
The matter is listed for further directions, in Mt Gambier, on 20 June 2013 at 9:30am.

UNTIL FURTHER OR OTHER ORDER

The wife have the sole use and occupation of the former matrimonial home located at Property S, [M] in the State of South Australia (hereinafter referred to as “the former matrimonial home”).
The husband pay all mortgage payments to the National Australia Bank arising in respect of the former matrimonial home, as they fall due, together with all other outgoings including rates and taxes in respect of the property.
As of the date of these orders, the husband pay to the wife, by way of spousal maintenance, the sum of $500.00 to be paid on the Friday of each week commencing 19 April 2013, to a bank account, the details of which are to be nominated by the wife to the husband.
The wife’s application for partial or interim property settlement is otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Moloney & Beams is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT ADELAIDE

ADC 994 of 2012

MS MOLONEY

Applicant

And

MR BEAMS

Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns spousal maintenance. It turns on consideration of propriety and adequacy.
The applicant in the proceedings is Ms Moloney “the wife”. She is fifty-eight years of age. By occupation, she is a [occupation omitted]. At present, she is in receipt of Workcover payments, due to a fracture to her thorasic spine, which was aggravated whilst she was employed at [omitted].
The respondent is Mr Beams “the husband”. He is sixty-two years of age. By occupation, he is a [omitted], employed at [omitted].
It is common…

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 Moloney and Beams

Details

AGLC: MOLONEY & BEAMS [2013] FCCA 85
Case: [2013] FCCA 85
Decision Date: 19 April 2013

CaseChat Overview and Summary

In the matter of *Moloney and Beams*, heard before Judge Brown, the dispute concerned interim orders in family law proceedings. The wife sought orders for the sole use and occupation of the former matrimonial home, payment of associated outgoings by the husband, and spousal maintenance. The husband sought to have the wife's application for partial or interim property settlement dismissed.

The court was required to determine whether to grant the wife interim sole use and occupation of the former matrimonial home, and whether to order the husband to pay the mortgage and other outgoings for that property. Additionally, the court had to consider the wife's application for interim spousal maintenance and the husband's opposition to any interim property settlement.

Judge Brown ordered that the wife have the sole use and occupation of the former matrimonial home, with the husband to pay all mortgage payments and other outgoings in respect of the property. The husband was also ordered to pay the wife spousal maintenance of $500 per week, commencing from 19 April 2013. The wife's application for partial or interim property settlement was otherwise dismissed. A conciliation conference was confirmed for 23 May 2013, with further directions listed for 20 June 2013.

Orders

Orders of the court

The conciliation conference fixed for 23 May 2013 is confirmed, together with the ancillary orders relating to it.

The matter is listed for further directions, in Mt Gambier, on 20 June 2013 at 9:30am.

UNTIL FURTHER OR OTHER ORDER

The wife have the sole use and occupation of the former matrimonial home located at Property S, [M] in the State of South Australia (hereinafter referred to as “the former matrimonial home”).

The husband pay all mortgage payments to the National Australia Bank arising in respect of the former matrimonial home, as they fall due, together with all other outgoings including rates and taxes in respect of the property.

As of the date of these orders, the husband pay to the wife, by way of spousal maintenance, the sum of $500.00 to be paid on the Friday of each week commencing 19 April 2013, to a bank account, the details of which are to be nominated by the wife to the husband.

The wife’s application for partial or interim property settlement is otherwise 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.