PENROD & PEARL

[2019] FCCA 2504

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENROD & PEARL [2019] FCCA 2504

Catchwords:
FAMILY LAW – Interim spousal maintenance – child support – departure application.

Legislation:

Family Law Act 1975 (Cth), ss.66F, 66G, 66P, 72, 74, 75
Child Support (Assessment) Act 1989 (Cth), ss.116, 117, 118

Cases cited:

Brown & Brown (2007) FLC 93-316
Drysdale & Drysdale [2011] FamCAFC 85
Garston & Yeo (No.2) [2019] FamCAFC 139
Gyselman and Gyselman (1992) FLC 92-279
Hall v Hall (2016) 257 CLR 490
Hanas & Jolaha (No.4) [2019] FamCA 483
M & M (2006) 36 FamLR 97
Maroney & Maroney [2009] FamCAFC 45
MS & PS (2006) FLC 93-268
Williamson & Williamson (1978) FLC 90-505

Applicant: MS PENROD

Respondent: MR PEARL

File Number: PAC 3484 of 2018

Judgment of: Judge Obradovic

Hearing date: 23 August 2019

Date of Last Submission: 23 August 2019

Delivered at: Parramatta

Delivered on: 6 September 2019

REPRESENTATION

Appearing for the Applicant: Mr Wells

Solicitors for the Applicant: Balmain Lawyers

Appearing for the Respondent: In person

ORDERS

1. The husband is to pay to the wife by way of interim spousal maintenance an amount of $185 per week.

2. The application for a departure order pursuant to s117(2)(c)(ia) of the Child Support (Assessment) Act1989 is dismissed.

3. The matter is listed for directions at 2.15pm on 1 November 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3484 of 2018

MS PENROD

Applicant

And

MR PEARL

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of Application in a Case filed 10 December 2018, the wife, who is the respondent in the substantive proceedings, seeks orders for interim spousal maintenance in the amount of $185 per week as well as a departure order in the amount of “$227 per month on top of the administrative assessment”.[1]

   [1] Leave was granted for the wife to amend her application orally

2. The wife relied on her Financial Statement sworn 23 August 2019 and an Affidavit filed 10 December 2018 in support of the orders she sought.

3. The husband had filed a Financial Statement on 27 July 2018, but he sought to rely on an Affidavit filed 23 July 2019.

Spousal Maintenance – Relevant Principles

1. In determining whether to make an order for spousal maintenance, it is appropriate for the Court to determine the issue in the following manner[2]: 

   a)Can the applicant support themselves adequately in terms of s72 of the Family Law Act?

   b)If not, what are the applicant’s reasonable needs?

   c)What capacity does the respondent have to meet those needs?

   d)What order is reasonable, having regard to s75(2) of the Act?

   [2] Hanas & Jolaha (No.4) [2019] FamCA 483 at [79] citing MS & PS (2006) FLC 93-268 per Coleman J

2. The question as to whether or not a person is able to support themselves “adequately” is:

   … not to be determined upon a “subsistence level” but upon consideration…