Noble and Noble - [2014] FCCA 421

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOBLE & NOBLE

[2014] FCCA 421

Catchwords:
FAMILY LAW – Application for award of spousal maintenance pending final hearing – nature of interim hearing – is applicant able to support herself adequately – threshold issue under section 72 – care of children aged 6 & 4 – applicant engaged in part time work – has respondent capacity to provide financial support – considerations concerning respondent’s property and financial resources – what is proper.

Legislation:

Family Law Act 1975, ss.4(1); 72(1); 74(1); 75(2); 75(3)

C & C (1996) FLC 92-651
In the Marriage of Kennon (1997) 22 FamLR 1
Bevan & Bevan (1995) FLC 92-600
Kajewski & Kajewski (1978) FLC 90-472
Mitchell & Mitchell (1995) FLC 92-601
Kiesinger & Padget [2008] FamCAFC 23
Brown & Brown (2007) FLC 93-316

Applicant:

MS NOBLE

Respondent:

MR NOBLE

File Number:

ADC 4739 of 2013

Judgment of:

Judge Brown

Hearing date:

28 February 2014

Date of Last Submission:

28 February 2014

Delivered at:

Adelaide

Delivered on:

7 March 2014

REPRESENTATION

Counsel for the Applicant:

Mr McGinn

Solicitors for the Applicant:

Degaris Lawyers

Counsel for the Respondent:

Mr Richards

Solicitors for the Respondent:

Howe Martin

ORDERS

The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or in default of agreement as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.
The respondent provide spousal maintenance to the applicant pending trial at the rate of $200.00 per week, to be paid to a bank account to be nominated by the applicant commencing on Thursday 13 March 2014 and each week thereafter or such longer period as the parties otherwise agree.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999, the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 16 May 2014 at 9:15am.
The matter is fixed for final hearing before Judge Brown in Adelaide on 7, 8, 9 & 10 October 2014 at 10:00am NOTING 4 days allowed.
Further consideration of the matter is adjourned to 31 July 2014 at 9:30am for trial directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4739 of 2013

MS NOBLE

Applicant

And

MR NOBLE

Respondent

REASONS FOR…

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 Noble and Noble

Details

AGLC: Noble and Noble [2014] FCCA 421
Case: [2014] FCCA 421
Decision Date: 7 March 2014

CaseChat Overview and Summary

In the matter of Noble and Noble, the court was required to consider competing applications for parenting orders and spousal maintenance. The proceedings involved the applicant and the respondent, with Judge Brown presiding.

The central legal issues before the court were the arrangements for the children, specifically the need for a family assessment, and the provision of interim spousal maintenance to the applicant. The court also considered the procedural steps necessary to advance the matter towards a final hearing, including conciliation and trial directions.

Judge Brown ordered that a family assessment be conducted, with the costs to be borne equally by the parties. The respondent was directed to pay spousal maintenance of $200 per week to the applicant pending trial. The parties and their legal representatives were also ordered to attend a Conciliation Conference. The matter was subsequently fixed for a final hearing in October 2014, with further trial directions to be considered in July 2014.

Orders

Orders of the court

The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or in default of agreement as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.

The respondent provide spousal maintenance to the applicant pending trial at the rate of $200.00 per week, to be paid to a bank account to be nominated by the applicant commencing on Thursday 13 March 2014 and each week thereafter or such longer period as the parties otherwise agree.

Pursuant to Section 26 of the Federal Circuit Court of Australia Act 1999, the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 16 May 2014 at 9:15am.

The matter is fixed for final hearing before Judge Brown in Adelaide on 7, 8, 9 & 10 October 2014 at 10:00am NOTING 4 days allowed.

Further consideration of the matter is adjourned to 31 July 2014 at 9:30am for trial directions.

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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