Mulder and Gildas - [2018] FamCA 647

FAMILY COURT OF AUSTRALIA

MULDER & GILDAS

[2018] FamCA 647

FAMILY LAW – PROPERTY – Sole occupation and Spousal maintenance – Where the wife seeks to have sole occupation of the former matrimonial home – Where the wife has made no contributions to the property which was purchased by the husband – Where the wife seeks that the husband pay her spousal maintenance – Where the wife has mental health difficulties and substance abuse issues – Where the wife is presently unable to work – Where only the amount of spousal maintenance is in dispute – Order made dismissing the wife’s application for sole occupation – Order made for the husband to pay spousal maintenance to the wife for a limited period of time.

Family Law Act 1975 (Cth) ss 72, 74, 75(2), 114

Bevan & Bevan (1995) FLC 92-600
Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Plowman v Plowman (1970) 16 FLR 447
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Sieling v Sieling (1979) FLC 90-627

APPLICANT:

Ms Mulder

RESPONDENT:

Mr Gildas

FILE NUMBER:

PAC

969

2018

DATE DELIVERED:

15 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

21 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Ms Neuhaus of Mahony Family Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

Aston Legal

Orders

That the husband pay to the wife or as she otherwise directs in writing the sum of $1,100.00 per week by way of interim spousal maintenance pending further order, the first payment to be made within seven (7) days from this date and then each week thereafter for a period of 26 weeks from this date.
That the husband pay to the wife or as she may otherwise direct in writing by way of lump sum interim spousal maintenance the sum of $5,000.00 within seven (7) days from the date of these orders.
That, otherwise, all interim applications be dismissed.
That these proceedings be transferred to the Federal Circuit Court of Australia at Parramatta.

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 Mulder & Gildas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 969 of 2018

Ms Mulder

Applicant

And

Mr Gildas

Respondent

REASONS FOR JUDGMENT

On 7 March 2018 the applicant wife filed an Initiating Application commencing proceedings seeking property adjustment orders as between herself and the respondent husband.
In that application the wife, in summary, sought…

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 Mulder and Gildas

Details

AGLC: Mulder and Gildas [2018] FamCA 647
Case: [2018] FamCA 647
Decision Date: 15 June 2018

CaseChat Overview and Summary

In *Mulder and Gildas*, Foster J of the Family Court of Australia considered applications for interim spousal maintenance. The dispute concerned the financial support to be provided by the husband to the wife pending the final determination of their proceedings.

The primary legal issue before the Court was whether interim spousal maintenance should be ordered, and if so, in what amount and for what duration. The Court also had to determine whether any other interim applications made by the parties should be granted.

Foster J reasoned that an order for interim spousal maintenance was warranted given the circumstances. The Court ordered the husband to pay the wife $1,100 per week by way of interim spousal maintenance for a period of 26 weeks, with the first payment due within seven days. Additionally, a lump sum of $5,000 was ordered to be paid within seven days as further interim spousal maintenance. All other interim applications were dismissed, and the proceedings were transferred to the Federal Circuit Court of Australia at Parramatta.

Orders

Orders of the court

That the husband pay to the wife or as she otherwise directs in writing the sum of $1,100.00 per week by way of interim spousal maintenance pending further order, the first payment to be made within seven (7) days from this date and then each week thereafter for a period of 26 weeks from this date.

That the husband pay to the wife or as she may otherwise direct in writing by way of lump sum interim spousal maintenance the sum of $5,000.00 within seven (7) days from the date of these orders.

That, otherwise, all interim applications be dismissed.

That these proceedings be transferred to the Federal Circuit Court of Australia at Parramatta.

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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