MURRAY & FITZGERALD
[2014] FCCA 2384
•17 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MURRAY & FITZGERALD | [2014] FCCA 2384 |
| Catchwords: FAMILY LAW – Property – short de facto relationship – applicant suffered head injury a year after separation – inadequate medical evidence – application for maintenance. |
| Legislation: Family Law Act 1975, ss.4, 44, 79, 90SB, 90SD, 90SE, 90SF, 90SM |
| Stanford & Stanford [2012] HCA 52 C & C (2005) FLC 93-222 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 Bevan & Bevan [2013] FamCAFC 116 Watson and Ling (2013) 49 Fam LR 303 G and G (1984) 9 Fam LR 969 In the Marriage of Kessey (1994) Fam LR 149 Pierce v Pierce (1998) FLC 92-844 Williams & Williams [2007] FamCA 313 |
| Applicant: | MS MURRAY |
| Respondent: | MR FITZGERALD |
| File Number: | DNC 349 of 2013 |
| Judgment of: | Judge Harland |
| Hearing dates: | 23 and 24 July 2014 |
| Date of Last Submission: | 30 July 2014 |
| Delivered at: | Darwin |
| Delivered on: | 17 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Jordan & Fowler Barristers & Solicitors |
| Counsel for the Respondent: | Ms Holtham |
| Solicitors for the Respondent: | Story & Associates |
ORDERS
That within 45 days of the date of these orders the respondent pay to the applicant the sum of $40,898.12.
That pursuant to Section
78*90SL of the Family Law Act 1975 each of thehusband*respondent and thewife*applicant shall be and hereby are declared to be the sole and absolute owners at law and in equity of:(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)any motor vehicle;
(d)all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.
NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to reflect the changes in order (2) from ‘78’ to ‘90SL’, ‘husband’ to ‘respondent’ and ‘wife’ to ‘applicant’.
IT IS NOTED that publication of this judgment under the pseudonym Murray & Fitzgerald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNC 349 of 2013
| MS MURRAY |
Applicant
And
| MR FITZGERALD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks orders for property adjustment and maintenance. The parties were in a de facto relationship for four years. Both parties acknowledge that it was a short relationship. The parties do not have any children.
Both parties made initial contributions. There is a real dispute about the weight and treatment of these contributions.
The parties are also in dispute as to the weight which should be given to the parties contributions during the relationship.
There is also a dispute about whether or not there should be any adjustments made under section 90SF(3) of the Family Law Act 1975 due to the applicant’s accident and the disparity in the parties’ income earning capacity.
The parties agree about the following issues:
a)The parties were in a de facto relationship for four years from 2007 to 2011.
b)The respondent earnt significantly more than the applicant throughout the relationship;
c)The respondent worked away from home for approximately six months of the year on a three week cycle;
d)The applicant was injured in a [omitted] accident approximately 12 months after the relationship ended.
It is clear that both parties focused on issues of minutiae rather than the broader picture. The respondent then spent some energy focusing on whether or not the application by the applicant was being brought out of time by period of some four months. Having regard to section 44(4) and (5) of the Family Law Act1975 and given the short period of time in dispute it was sensible that by the time of the hearing the respondent no longer sought to pursue that argument. The applicant spent much time preparing numerous schedules which included adding in the amounts she spent on groceries during the relationship. Her time could have been better spent on other aspects of case preparation.
The applicant argues that she should receive an adjustment of 30% based on her contributions and an additional 10% for her section 90SF(3) factors. The respondent says the applicant should receive a 5% adjustment for contributions and no other adjustment.
In addition to the property adjustment the applicant also seeks that the respondent pays maintenance in the sum of $500 a week for six months or a lump sum of $12,000.
The parties’ existing legal and equitable interests
The parties’ current legal and equitable interests are as follows:
a)Property D (R) $730,000
b)Property E, Queensland (A) $210,000
c)2013 Ducati motorbike (R) $15,000
d)Tools and equipment (R) $13,000
e)Containers (R) $30,000
f)Mortgage Property D (R) ($458,811)
g)Mortgage on Property E (A) ($193,633)
h)Loan on Ducati ($18,683 )
Neither party provided current figures for their superannuation interests, instead relying on figures as at separation.
Both parties included balance sheets in their case outlines which refer to bank account and credit card balances as at separation. They do not include current figures for bank accounts and liabilities. In this regard the balance sheets are unhelpful. Whilst in some cases it will be relevant to know about the value of items as at separation they should not be included in the balance sheet.
Stanford and Stanford [2012] HCA 52 requires the court to identify the existing legal and equitable interests. Therefore only current interests should be included in the balance sheet.
Initial contributions
At the beginning of the relationship the applicant says she had the following assets and liabilities:
a)Property E, Queensland with equity of $93,326;
b)superannuation of $31,000;
c)Hyundai Santa Fe motor vehicle $12,000;
d)Cash.
The applicant says that she had $12,000 in cash which she kept for some months before putting some in the bank account. She provides no evidence as to what she did with this cash. The applicant says she sold her Mazda [omitted] for $23,500. She used $13,500 to purchase the Hyundai [omitted] motor vehicle. Whilst the court accepts that she received cash from the sale of her vehicle, it is of some concern that the applicant, who produced many documents and prepared several detailed schedules based on documents she had, did not provide any documents as to how she used the $12,000. The respondent says he has no knowledge of the applicant having $12,000. I accept she would have used some of these funds for her moving expenses relocating from Queensland to the Northern Territory. I cannot accept that she used the whole of those funds for the benefit of the relationship when she received those funds several months before the relationship began and where there are no documents.
At the beginning of the relationship the respondent says he had the following assets and liabilities:
a)20 acres of land at [D];
b)Shed with kitchenette and bathroom;
c)Mitsubishi [omitted] vehicle (which the respondent bought by borrowing the whole amount to purchase a car by increasing his mortgage);
d)superannuation of $41,500;
e)mortgage secured over the [D] land.
f)tools and equipment and a 20 foot container worth about $6,700
g)savings of $5000.
The respondent was not challenged about his figures. The exact equity the respondent had in the property at the beginning of cohabitation is unclear though clearly it was modest. By the time of cohabitation the respondent had obtained approved plans to build a four-bedroom home on the property.
When considering initial contributions it is important not just to look at the worth of those assets but how those assets were used during the relationship.
The applicant sought to emphasise the amount of equity that she brought into the relationship from her Queensland property. She failed to recognise the distinction between her use of her property and the respondent’s property during the relationship. The applicant rented out her Queensland property for the duration of the relationship and applied the rent to the mortgage. On her evidence there was a shortfall of about $5,000 a year on the Queensland property. Therefore the Queensland property could not generate any income which she could apply to the relationship. She also had the benefit during a period of living in the respondent’s home. She did not contribute towards the respondent’s mortgage and she did not have any rental expenses. She did use the mortgage on her property to build the stables on the respondent’s property. I deal with this separately below.
Contributions during the relationship
The applicant does not dispute that the respondent paid the entire mortgage and rates payments for the property.
The applicant had to concede when faced with documentary evidence that contrary to her assertions in the affidavit that she paid for virtually all of the household expenses such as groceries and vets bills the parties shared those bills. One example is in her affidavit she says she paid all of the vet bills. Then in cross-examination she said she paid 95% of the vet bills. She then was faced with several of their bills paid by the respondent and she had to concede that she did not pay anything close to 95% of the bills.
The respondent worked away from home for about six months of the year (not in one block). The applicant remained living in the property and maintaining the property during those periods. This is contribution on her part. But the respondent denies that the applicant ever did any work outside the property and I do not accept this. Just as the applicant seeks to exaggerate her contributions the respondent seeks to minimise her contributions.
The applicant extended her mortgage on her Queensland property in order to pay for the horse float and stables on the [D] property for her horses. This has added value to the [D] property according to the valuation. The respondent complains that he has no interest in horses and did not want stables.
Impressions of the parties
My impression of the applicant’s case was that she was seeking to bolster contributions wherever possible in order to sustain the argument for an adjustment of 40% of the pool. One example of this is during the course of the final submissions the applicant’s Counsel sought to give the applicant some credit for having moved from Queensland to the Northern Territory where she had been living in her Queensland home and had steady employment. She has little information about this and deposes to the fact that after the parties met online in February 2007 over the course of the next several months they took turns visiting each other until she moved to Darwin in September 2007. There is nothing to suggest that this was other than a joint decision. I do not find this to be a relevant consideration.
The respondent sought to minimise the applicant’s contributions. His case was that but for the stables being built on his property, which he concedes has increased the value of his property by $36,000, there should be no property adjustment at all.
The applicant was in many respects an unreliable witness. I do not find that she deliberately sought to rely or mislead the court. I suspect that part of her difficulties arise from her brain injury. It was apparent during cross-examination that there were several bank accounts that she had failed to disclose which she had documents for before the court. The document showed that those accounts had very little in them but that does not alleviate her of her disclosure obligations.
It became apparent that the respondent also failed in his disclosure obligations. This was with respect to the post separation period as became apparent from comments he made during cross-examination. I had the impression that he did not think that post separation financial matters were relevant. The respondent received payments of $10,000 and $50,000 from his father which he used to purchase six sea containers to sell as portable accommodation (which is quite common in the Northern Territory).
The respondent’s income during the relationship was significantly higher than the applicant’s even allowing for the fact that the applicant’s taxable income was low because of the deductions she was able to claim through her business.
The respondent received payments totalling $60,000 from his father post-separation. Using some of that money he bought six 30 foot sea containers for about $35,000 including freight. He has three left on the property. He sold those for about $11,500 each. He has had the other three for about a year and has not been able to sell them yet. He could get about $30,000 for them.
Post separation contributions
The applicant removed several items from the property which she then effectively wasted. The respondent complains that some of the items were necessary for his business and the applicant refused to return them when requested. The applicant left the watering system, Honda engine, extension ladder and a thousand litre water tank on friends’ properties. She has not used them and has not tried to sell them. She has not returned them to the respondent. She conceded that they were items of the relationship and that she did not pay for all of them. She took a generator with her which she says she has not used but which she may have to use in the future.
She took the ride on mower with catcher and fertiliser spreader and sold it. She also took a fridge freezer and washing machine. The respondent says it will cost $6000 to replace the Honda pump fire hose nozzle and water tank. He provided the quote amongst his discovered material. This is an expense that he should not have had to incur.
The respondent continued to work full time and pay the mortgage and rates for the property. He currently earns about $120,000 a year. His income was about half that in 2012 when he was working for himself. He has been able to pay his legal costs from his income but will have some owing after the hearing.
Superannuation
The applicant seeks a superannuation split from the respondent’s superannuation. Despite this her lawyers did not accord the superannuation fund procedural fairness. They also did not provide the court with a draft superannuation splitting order at the hearing.
The applicant says she was self-employed during her relationship. She did not pay herself superannuation.
There is no evidence that the respondent made voluntary payments to superannuation during the relationship.
At the beginning of the relationship the applicant had $31,000 in superannuation. At separation the applicant had $43,188 in superannuation.
At the beginning of the relationship the respondent had $41,500 in superannuation. At the end of the relationship he has $119,100 in superannuation.
The applicant has not contributed to the respondent’s increase in superannuation post separation.
In this matter, consistent with the Full Court’s approach in C & C (2005) FLC 93-222 it is appropriate to deal with the superannuation as a separate pool.
In the circumstances of this case it would not be just and equitable to make a superannuation split in favour of the applicant.
Section 90SF(3)
Section 90SF(3)(b) refers to the income, property and financial resources of each of the parties and the physical and mental health of each of them for appropriate gainful employment. It is clear that the respondent is in a stronger financial position that the applicant.
Neither party has an obligation to support any other person. Neither party is cohabiting with another person.
There is a disparity between the parties earning capacity but that is not in any way related to the relationship. The duration of the relationship has had no impact on the applicant’s earning capacity.
The applicant has not contributed to the respondent’s income and earning capacity. She has made modest contributions to his property which I have already addressed.
The applicant was injured in August 2012. She had been receiving insurance payments of $500 a week which was due to end in August 2014.
The evidence about the applicant’s injury and her ability to return to work was unsatisfactory. She did not provide any medical evidence. The medical evidence came from subpoenas which were issued on behalf of the respondent.
In January 2013 that applicant was assessed as being ready to trial going back to work but that did not occur apart from the applicant having a couple of hours work in a friend’s business.
After the applicant was first injured her driver’s licence was taken away from her but it was reinstated in early 2013 although the applicant says she has instructions that she was only to drive in rural areas and not in traffic. She says when she was reassessed in Geelong more recently they indicated that they want her to undergo a driving test.
The applicant has attended several different rehabilitation services because of her move which no doubt has hampered her progress. Last year she was attending the [omitted] Centre now she is attending the [omitted] Rehabilitation Centre. In October 2013 she was assessed by a neuropsychologist who expressed the opinion that the applicant was suffering from stress and anxiety and if she could control that she could go back to work. She recorded the applicant was content with feedback and that she was not been told anything new. During cross-examination the applicant denies having any anxiety.
The applicant did not produce evidence by any treating practitioners about her prognosis. It is most unsatisfactory when she is seeking an adjustment and maintenance because of her medical condition. It seems from the subpoenaed material she was cross-examined about, that she has not done all she can to return to work. In December 2012 the hospital recommended that she continued to do brain training exercises and that she get psychological support for her anxiety which was impacting on her recovery. The applicant conceded she did not do that.
The wording of section 90SF does not require there to be a link between a party’s state of health to the de facto relationship. It also does not require there to be link between a party’s capacity for gainful employment. Therefore even though the applicant’s injury occurred a year after the breakdown of the relationship she does require an adjustment under the section in her favour. The applicant’s evidence about her extent and duration of her incapacity is wholly inadequate.
Legal Principles
There is no dispute between the parties that they were in a de facto relationship of more than two years duration. Section 90SB(a) is satisfied. Section 90SD being the geographical requirement is also satisfied.
Part VIII of the Family Law Act1975 is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 90SM(1); 90SM(3); 90SM(4); & 90SF(3) of the Act. Pursuant to section 90SM(1) the Court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in property.
The expression “property” is defined in section 4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to section 90SM(3) the Court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitory words “shall not” in the relevant section.
Section 90SM(4) provides the mechanics of how a Court is to make an order altering marital property interests.
Paragraphs (a); (b); and (c); categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the Court to take into account any order regarding the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the Court to consider a list of matters contained in section 90SM(3), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs. Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until recently, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court has recently considered the operation of section 79 in the matter of Stanford & Stanford [2012] HCA 52.In the case, the majority stated at [35]-[36] that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of section 79, which can be summarised as follows:
1.Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word existing.
2.Secondly, although section 79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3.Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to section 79(2) in addition the matters referred to section 79(4).
In Stanford & Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of section 79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
Stanford & Stanford casts doubt on the correctness of adding back notional amounts to the pool for the purposes of property settlement. The Full Court confirmed this in Bevan & Bevan [2013] FamCAFC 116. The Full Court said at paragraph [79]:
“We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.”
The Court should adopt a two pool approach referred to in C v C (2005) FLC 93-220 with superannuation assets separately due to the superannuation constituting a significant percentage of the total pool.”
The principles referred to in Stanford & Stanford are equally applicable to de facto property matters: see Watson and Ling (2013) 49 Fam LR 303.
Particularly because of the amount of energy extended by the applicant on producing numerous schedules totalling the amounts she spent on things such as groceries, telephone bills and other expenses, it is useful to refer to Nygh J’s decision in G and G (1984) 9 Fam LR 969 where he stated the court cannot assess contributions with mathematical precision with respect to each item. In the Marriage of Kessey (1994) Fam LR 149 the Full Court said it is not necessary and is often not capable of arriving at precise mathematical valuations of the parties contributions. The court must evaluate the weight to be given to the parties contributions relative to the contributions of the other party.
Initial contributions
In Pierce v Pierce (1998) FLC 92-844 at paragraph 28 the Full Court said:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”
In Williams & Williams [2007] FamCA 313 the Full Court states at the paragraph 26:
“We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.”
Asset by asset or global approach?
Surprisingly neither party made any submission about which approach should be applied. In short relationships where finances have been kept separate it may make sense to apply an asset by asset approach.
Application of legal principles
If it were not for the applicant’s contribution of the stables to the [D] property and her brain injury this is a case where I would not be satisfied that it would be just and equitable to make an adjustment of the parties’ interests. Due to these factors I am satisfied that it is appropriate to make a property adjustment.
The reasoning of the Full Court in Williams should apply in the reverse. This property was kept entirely separate during the relationship. The applicant’s use of the mortgage facility on her property to build the stables on the respondent’s property has been taken into account separately.
It is unfortunate that the applicant’s Queensland property has decreased in value by some $30,000 since the applicant purchased it. This however is not attributable to the circumstances of the relationship but is simply a factor of market forces.
The parties’ treatment of the respondent’s property at [D] which he brought to the relationship is quite different.
In contrast the respondent’s equity has increased. That is not surprising given at the commencement of the relationship he was about to commence construction of a home on the land.
I do not propose to include the parties’ credit card debts in the pool for division as it is almost three years after the parties separated. The applicant says she has debts she has incurred because of not being able to keep up with her living expenses because of her injury. What was clear from her evidence is that she removed some valuable items from the [D] property at separation which she neither used nor sold. Some of those items are still in her friends’ possession. In my view taking this into account I am not going to include her post separation debts. The respondent has had to replace some of those items at additional expense to him. I am also not including his estimate to replace those items either.
The applicant has not contributed to the containers which the respondent bought post separation with money he received from his father.
The applicant says that her contributions should be assessed at 30%. This is excessive. It was clear that the applicant exaggerated her contributions and overvalued her initial contributions.
The respondent says that the applicant should receive $36,000 which is the increase in value of the [D] property due to the addition of the stables. He says this is 5%. This undervalues the applicant’s contributions.
Conclusion on property
I am not satisfied that there should be a significant adjustment for initial contributions in this case. Whilst the applicant had equity in her property it was effectively quarantined from the relationship. She has a few other items and some cash but the respondent also had some items. The respondent has a small amount of equity in the land and had started the process of building the home on it. Whilst the applicant made some contributions to it she also received significant benefits. I do not think there should be an adjustment of initial contributions in this case as they effectively cancel each other out.
The applicant financially contributed to the [D] property by extending her mortgage in order to build the stables on the property. Even though the respondent complains that he did not want the stables as he has no interest in horses, he acquiesced to the stables being built and it has added value to the property.
The respondent’s financial contributions far exceeded the applicant’s.
The applicant’s contributions as homemaker exceeded the respondent’s as he was away for half the year.
It is a short relationship with no children.
The respondent’s motorcycle (which has a debt exceeding its value) and the containers were acquired after separation. The respondent used funds given to him post separation by his father to acquire the containers. The applicant made no contribution to them. Therefore I will exclude them from the pool.
This leaves the equity in the [E] property of $16,367 and the equity in the [D] property of $271,189. The applicant says she has the [E] property on the market for sale so she is likely to have some selling costs. I have not been provided with any figures as to what those costs are likely to be.
I assess the applicant’s contributions at 10%. I assess the section 90SF(3) factors in the applicant’s favour at a further 10%.
The respondent will need to make a cash payment of $41,118.12 to the applicant. The parties have agreed that the applicant needs to reimburse the sum of $220 to the respondent for her share of the valuation fees. Deducting this sum means that the respondent needs to pay the applicant $40,898.12.
Maintenance
Section 90SE gives the Court power to consider maintenance of a de facto party after the breakdown of the relationship as it considers proper. The relevant considerations in this case are set out at s90SF(1)(a) and (b)(ii). I must consider to what extent the respondent is reasonably able to maintain the applicant and whether the applicant is unable to support herself adequately because of her physical or mental incapacity for appropriate gainful employment.
I need to consider the relevant section 90SF(3) matters.
The applicant seeks maintenance from the respondent in the sum of $500. The respondent was not cross-examined about his expenses in his financial statement. His financial statement shows that he has expenses approximately equal to his income. The applicant’s counsel said during final submissions that it is a matter for the respondent to prioritise his expenses. I do not accept that submission in circumstances where counsel made no effort to challenge the respondent’s expenses and have been separated for three years, after a four year relationship.
Whilst arguably the applicant has a need she has not established that the respondent has a reasonable capacity to maintain her. Furthermore she seeks maintenance for a six month period. No reason is provided as to why this period is appropriate.
The applicant’s medical evidence is wholly inadequate. It is not enough to rely on medical certificates which do not go beyond September 2014. She is entitled to insurance payments until August 2014. It is clear from the subpoenaed material that the applicant was cross-examined about, that the applicant has not established how long her disability is likely to last and how impaired her earning capacity is.
In the circumstances I am not satisfied that it would be proper to order the respondent to pay the applicant maintenance.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 17 October 2014
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Remedies
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Procedural Fairness
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Standing
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Expert Evidence
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