Muniz & Farina
[2025] FedCFamC2F 406
•31 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Muniz & Farina [2025] FedCFamC2F 406
File number: MLC 6681 of 2023 Judgment of: JUDGE BLAKE Date of judgment: 31 March 2025 Catchwords: FAMILY LAW– Application for spousal maintenance by the de facto wife – where wife relies on care and control of a child to assert she cannot adequately support herself – where the evidence fails to establish the wife is unable to support herself adequately because of care and control of a child – application dismissed – other orders made by consent. Legislation: Family Law Act 1975 (Cth) ss 90SD, 90SE(1), 90SF(1), 90SF(1)(b)(i), 90SF(2), 90SF(3), 90SF(4)
Riethmuller G and Smith R, Family Law (7th ed, Thomson Reuters, 1991)
Cases cited: Carson & Hillman [2019] FamCAFC 42
In the Marriage of Bevan (1993) 120 FLR 283
In the Marriage of Patterson (1979) FLC 90-705
Jabara & Gaber [2021] FedCFamC1A 26
Kensit & Kensit [2022] FedCFamC1F 633
MS & PS (2006) FLC 93-268
Stein v Stein (2000) 25 Fam LR 727
Tomaras v Tomaras (2021) 64 FamLR 237
Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 11 March 2025 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: RM Commercial & Family Lawyers Counsel for the Respondent: Mr Dean Solicitor for the Respondent: Bardo Lawyers ORDERS
MLC 6681 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MUNIZ
Applicant
AND: MR FARINA
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
31 MARCH 2025
THE COURT ORDERS THAT:
1.The Applicant’s application for spousal maintenance as set out in the Further Amended Application filed 9 September 2024 be dismissed.
AND THE COURT ORDERS BY CONSENT THAT:
2.All previous orders be and hereby are discharged.
3.Unless otherwise specified in these orders and, save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of the parties in any joint account shall be divided equally between the parties and thereafter the parties will do all things and sign all documents to close the account;
(c)each party shall forego any claims they may have to any superannuation, long service leave, redundancy, retirement and like benefits belonging to or earned by the other;
(d)each party shall forego any claims they may have to any monies residing in individual bank accounts belonging to the other;
(e)insurance policies shall remain the sole property of the owner named thereon;
(f)any joint tenancy of the parties in any real or personal property is hereby expressly severed;
(g)the Applicant will be solely liable for and indemnify the Respondent in relation to any liability in the Applicant’s sole name or encumbering any item of property to which the Applicant is entitled pursuant to these Orders; and
(h)the Respondent will be solely liable for and indemnify the Applicant in relation to any liability in the Respondent’s sole name or encumbering any item of property to which the Respondent is entitled pursuant to these Orders.
AND THE COURT NOTES THAT:
A.The parties understand that the default judgment against the Respondent in the Magistrates’ Court of Victoria Court (Court Reference …) still stands.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application by the de facto wife (‘wife’). She seeks an order that the de facto husband (‘husband’) pay to her spousal maintenance in the sum of $2000 per month for two years. The husband opposes the order sought by the wife.
The wife’s evidence is that the parties were in a relationship from around June 2018 until they separated on a final basis in June 2021. The husband’s evidence is that the parties commenced living together in January 2019 and separated in September 2020. There is one child of the relationship, X born in 2022 (‘X’). It is common ground that the husband has paid minimal child support and is in arrears in relation to his child support payments.
The husband did not contest the jurisdiction of the Court to entertain a claim for spousal maintenance. No issue was taken, for example, that the parties were not in a de facto relationship, or that the provisions of section 90SD of the Family Law Act 1975 (Cth) (‘Act’) were not satisfied in this case. Further, while the trial material before the Court makes reference to attempts by the wife to commence bankruptcy proceedings against the husband, the Court was assured by both Counsel no such proceedings had been commenced.
The wife relied on her trial affidavit affirmed 30 January 2025, her Financial Statement affirmed 31 January 2025, and her outline of case, as well as documents she tendered into evidence. The husband relied on his trial affidavit sworn 14 February 2025, his Amended Financial Statement of 14 February 2025, and his outline of case. Both parties adopted their affidavits in the witness box and were cross-examined.
For the reasons that follow, I have decided to dismiss the wife’s application for spousal maintenance.
LEGISLATION
Section 90SE(1) of the Act sets out the power of the Court in spousal maintenance proceedings. Relevantly to this application, section 90SE(1) of the Act permits the Court to ‘make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division’.
Section 90SF(1) of the Family Law Act 1975 (Cth) (‘Act’) sets out the right of a de facto spouse to maintenance. The section provides as follows:
(1)In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a)only to the extent that the first‑mentioned party is reasonably able to do so; and
(b)only if the second‑mentioned party is unable to support himself or herself adequately whether:
(i)by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii)for any other adequate reason.
Subsections 90SF(2) – (4) then provide as follows:
(2)In applying this principle, the court must take into account only the matters referred to in subsection (3).
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(b)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; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i)a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
(4)In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
PRINCIPLES AND APPROACH
In In the Marriage of Bevan (1993) 120 FLR 283, the Full Court of the Family Court of Australia summarised the principles to apply when dealing with applications for spousal maintenance (in the context of a marriage). The Full Court stated at page 290 as follows:
Taken together then, we would state the law as being that an award of spousal maintenance requires:
(1) a threshold finding under s 72;
(2) consideration of s 74 and s 75(2);
(3)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
(4)discretion exercised in accordance with the provisions of s 74, with “reasonableness in the circumstances” as the guiding principle.
In MS & PS (2006) FLC 93-268, Coleman J identified four matters the Court is to have regard to when deciding whether to make an order for spousal maintenance in the context of a marriage. The four steps are:
(a)to what extent can an applicant for spousal maintenance support himself or herself;
(b)what are the applicant’s reasonable needs;
(c)what capacity does the respondent have to meet an order; and
(d)if steps 1-3 favour an applicant, what order is reasonable having regard to section 75(2) of the Act.
These four steps are cited with regularity. While a helpful guide, they are not a replacement for the words of the Act. On this point, see Riethmuller G and Smith R, Family Law (7th ed, Thomson Reuters, 1991) at [19.80].
The onus of establishing a need for maintenance is on an applicant, in this case the wife. If the wife cannot establish an inability to support herself adequately, an order for maintenance will not be made: In the Marriage of Patterson (1979) FLC 90-705.
The principles in relation to child support payments and their effect on a claim for spousal maintenance have been addressed in various cases, including Stein v Stein (2000) 25 Fam LR 727 (Kay, Holden and Dessau JJ) at [47], [49], and [56] – [57], Carson & Hillman [2019] FamCAFC 42 (Strickland, Kent and Watts JJ) at [61], and Jabara & Gaber [2021] FedCFamC1A 26 (Ainslie-Wallace J (sitting alone in an appellate capacity) at [30]-[31]). A more recent practical application of these principles occurred in Kensit & Kensit [2022] FedCFamC1F 633 where Brasch J at [58] – [59] and [62] excluded from the wife’s income the amount she received from child support from the husband, and excluded from Part N of the wife’s Financial Statement expenses claimed for the children, when assessing an application for spousal maintenance. I propose to follow the approach of Brasch J in this matter, and counsel for the wife accepted that to be the correct approach.
I now proceed to consider the Application and the evidence in light of the principles above.
ASSET POOL
The sole issue before me is the spousal maintenance application by the wife. Neither party sought orders altering property interests. Notwithstanding that, the parties produced a balance sheet. Several items in that balance sheet are not agreed. The contents of that balance sheet are set out below:
No Ownership Description Applicant’s Value Respondent’s Value ASSETS 1 Applicant Property in Suburb B E $480,000 $480,000 2 Applicant C Bank account E $13.90 $13.90 3 Applicant D Company E $20,000 $20,000 4 Applicant Household contents E $3,000 $3,000 5 Respondent E Company E $300,000 Nominal 6 Respondent Household effects E $10,000 Nominal 7 Respondent CBA account Ending #...92 E $3,000 $3,000 8 Respondent CBA account ending #...77 E $300 $300 9 Respondent Motor Vehicle 1 E $5,000 $5,000 Total $821,314 $511,314 ADDBACKS 10 Respondent Gambling losses E $700,000 NIL Total $700,000 NIL LIABILITIES 11 Applicant Mortgage on property in Suburb B E $400,000 $400,000 12 Applicant Debts to Mr F & Ms G E $110,700 Not known 13 Applicant Tax due but unpaid for previous financial years E $43,000 Not known 14 Applicant Outstanding Stamp duty payable E $27,470 Not known Total $581,170 $400,000 SUPERANNUATION Member Name of Fund | Type of Fund 15 Applicant Super Fund 1| Accumulation E $130,000 E $130,000 16 Respondent Not known | NIL NIL Total E $130,000 $130,000 FINANCIAL RESOURCES Nil IS THE WIFE UNABLE TO ADEQUATELY SUPPORT HERSELF FOR ONE OF THE STATED REASONS?
Two matters emerged about the wife’s case at the outset of the hearing:
(a)the wife’s counsel confirmed, having regard to the terms of section 90SF of the Act, that the wife’s application for spousal maintenance was based on her inability to support herself adequately by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years (section 90SF(1)(b)(i)). The wife’s claim for maintenance was not advanced on any other basis; and
(b)I asked the wife’s counsel why the wife sought maintenance for a two-year period. At the outset of the hearing, he submitted that one aspect of the wife’s case was that the wife sought maintenance for two years because she needed time to develop and consolidate her business. He submitted that the wife had allowed the business to fall away during the relationship at the behest of the husband, and she needed time to re-establish it. In closing, for the first time, he added that the period of two years was based on X starting school at that time.
It is self-evident that the first reason proffered in subparagraph (b) is not consistent with the basis upon which maintenance is said to be sought by the wife in subparagraph (a). Assuming the evidence exists to make good the proposition in subparagraph (b) above (a matter to which I will return), that fact does mean that the wife has established under the Act that she cannot adequately support herself because she has care and control of a child under 18 years.
The wife filed an affidavit in the proceedings that stood as her evidence in chief. In her affidavit she deposes, inter alia, to the husband refusing to provide her with any financial support during her pregnancy, to his failure to pay child support, that she is the sole carer of X, and that the husband has not sought to spend time with X. There is little to any evidence in her affidavit about X or her care of him, other than the broad statement that she is the sole carer.
In cross-examination, the wife expanded somewhat upon her evidence. She stated that she was currently working 2 – 2.5 days per week which was ‘not as much as I would like to’. She confirmed that X was in childcare on those days. She confirmed that there was capacity at X’s existing childcare centre for him to attend on more than three days per week, but said she could not afford to send him. She confirmed that if finances permitted her to send X to childcare for four days per week, there would be no reason she could not work four days or even five days per week.
Much, if not all of the wife’s evidence above may be accepted.
It is common ground that the wife is self-employed in her own business. She provided no evidence-in-chief as to her qualifications, experience or employability. The following evidence however, emerged from the wife in cross-examination:
(a)she has a degree in Honours in the relevant field;
(b)in her ‘LinkedIn’ profile, she describes herself variously as having ‘renowned expertise […]’, and as having a ‘distinguished track record of leading national and multinational organisations to achieve their […] objectives’; and
(c)she has held roles with various companies;
(d)she has worked with leading brands in her career; and
(e)she has won various awards for her work.
In cross-examination, the wife confirmed that a professional in her field in Melbourne earns around $90,000 per annum, and did not contest that a manager in her field in Melbourne earns around $125,000 per annum. Asked whether she could work in a senior role given her background, the wife said ‘with a child in my care, not so much’, but nevertheless agreed that with some upskilling, she could work in a senior role.
I have set out the evidence above in some detail. I accept it as fact. It is important to note, however, the omissions or limitations in the evidence that is before the Court. They are as follows:
(a)while I accept the wife is the sole carer of X and that the father currently appears to play no role in his life, that fact of itself does not establish that the wife is unable to adequately support herself because she has the care and control of X. That is because the wife offers no evidence as to how her sole care of X produces the result that she is unable to adequately support herself;
(b)the wife’s care and control of X does not prevent her from working or earning an income. The evidence is that she can earn an income;
(c)there is no evidence from the wife as to the nature of her work, how that work is to be performed, where that work is to be performed, the usual hours the work is to be performed at, or the nature of demands of her clients;
(d)there is no evidence from the wife as to whether X has any particular needs, and how the nature of X’s needs means she is unable to adequately support herself through her work, given the demands of her work;
(e)the wife adduced no evidence in chief of jobs she has applied for, been interviewed for, and failed to obtain. She made a vague reference to having applied for jobs in cross-examination, but no details were provided;
(f)the wife provided no evidence in chief of her being registered with recruitment agencies in order to obtain work; and
(g)to the extent the wife may contend that lack of availability of childcare means she has to care for X herself and is therefore unable to adequately support herself, there is no barrier to X being placed into childcare for a greater period of time each week to enable the wife to work. The wife made clear X had a place and he could obtain more time in childcare, and that she was open to that course. The wife’s sole concern was her ability to afford more care. That is understandable, however in taking that position, the wife appears to ignore the fact that if she worked more hours each week, she would have greater capacity to pay for childcare. There is no evidence to suggest that even if she extended her work hours she would not be able to afford childcare.
There is then the contention that the wife requires maintenance for two years to enable her to re-establish her business. The wife’s evidence in chief in support of that proposition is as follows. She spent a great deal of time working on the husband’s business and established his business model, the husband demanded that she complete all household tasks and chores, and that in around April 2021, she was unable to find a rental property as she ‘did not have strong employment income as I had ceased most of my work to work on the [husband’s] business’. There are problems with this evidence that go beyond the husband’s denials of parts of it. First, the evidence provided is best described as sparse and lacking in details and particulars. I note also that while the evidence is the husband demanded she complete all household tasks, there is no evidence from her that she complied with those demands to the detriment of her business. Second, the evidence as it stands does not establish the wife allowed her business to ‘fall away during the relationship’. The wife offers no evidence of the performance of her business before she met the husband, what her income was before she met her husband, or how her income declined after she met the husband. She says she earned $52,000 in the 2021 financial year (the year the relationship ended on her evidence) but there is no way of ascertaining whether that was a decline in income from that which she previously enjoyed. The amount of $52,000 per annum is also not consistent with her statement that she ‘ceased most of my work to work on [the husband’s] business’.
Given the above, I also do not accept that the wife needs two years to re-establish her business because she ceased working during the relationship. The evidence is she was working and earning her own income in the year the relationship ended. The business continued to operate and earn an income for the wife during the relationship. There is no evidence from the wife that goes to her attempts to operate her business over the last 3.5 years since separation, what barriers she faced in seeking to operate her business in the last 3.5 years, or her attempts to overcome any barriers. There is no evidence from her to indicate why things may change in another two years.
There is then the wife’s Financial Statement. The wife discloses an income of $643.65 per week. That amount is said to be comprised of the family tax benefit of $197, a parenting payment of $433.50, and phone benefit of $13.15. The wife did not adduce any evidence in respect of the ‘family tax benefit’ or the ‘parenting payment’ referred to in her affidavit. Her counsel made no express submission about these matters, including whether either or both of these payments were to be regarded as an ‘income tested pension, allowance or benefit’ for the purposes of section 90SF(4) of the Act. Considered overall, his submission is to be understood as being that these particular payments are not to be disregarded. That is the only conclusion one can draw when he submitted that the ‘shortfall’ the wife suffered is $432 a week, and that shortfall was based on a calculation that included the family tax benefit and parenting payment as income earned or received by her. Bearing in mind the onus on the wife to establish the need for maintenance, the lack of evidence about these payments and the lack of submissions of the wife’s counsel about these matters, the wife’s income from the ‘parenting payment’ and the ‘family tax benefit’ is not to be disregarded for the purposes of her application.
In the Financial Statement, the wife says that her income from her business is ‘nominal’. She included no evidence in her affidavit about her income from the business. Under cross-examination however, the wife revealed she earned approximately $52,000 in the 2020/2021 financial year; approximately $31,000 in the 2022 financial year, and approximately $23,000 in the 2023 financial year. She admitted she had not provided a tax return for the 2024 financial year. These figures lead to the conclusion that the wife’s assertion that the income from her business is nominal cannot be accepted.
Finally, I turn to the wife’s expenses. In Part G of her Financial Statement, the wife claimed total expenditure of $1075 per week, comprising mortgage repayments of $825 per week, rates and charges of $200 per week, and loan repayments of $50 per week. In Part N of her Financial Statement, she claimed expenses for her totalling $455 per week. The wife was cross-examined about her expenses. The wife accepted under cross-examination that her mortgage repayments were $590 per week and not $825 per week. She accepted that her claim for holiday expenses of $40 per week was overstated. She also accepted that she had not provided any other detail for her ‘other necessary expenses’.
When all of the above is considered, I find that the wife has not met the onus cast upon her of establishing a need for maintenance. She has not established an inability to support herself adequately for the reasons set out in section 90SF(1)(b)(i) of the Act. The evidence falls far short of establishing the wife is unable to support herself because of her care and control of X. She is currently working. She is able to secure more childcare for X and could increase her hours of work. She indicated there is no other reason, other than the cost of childcare, that she could not extend her work hours. While I accept childcare will cost more, there is no reason to think the wife could not afford more childcare once her work hours increase. The wife is clearly highly qualified, experienced, and talented in her field, and has had a steady employment history working for well-known clients. Persons with the wife’s qualifications would appear to be able to earn an income of at least $90,000 per annum to $125,000 per annum. Earning an income in this range would cover the alleged shortfall of the wife, noting that shortfall would appear to be less than what she claims. I consider it is proper that no order for maintenance be made in the circumstances of this case.
The finding above is sufficient to dispose of this proceeding, and it is not necessary for me to embark upon an examination of the Husband’s capacity to pay: see Tomaras v Tomaras (2021) 64 FamLR 237 at [127] (Ainslie-Wallace and Aldridge JJ). The wife’s application for spousal maintenance is dismissed.
The parties otherwise consented to orders to resolve the proceeding between them. The Court will make the orders sought.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 31 March 2025
0
5
2