Plany and Geller - [2014] FamCA 114

FAMILY COURT OF AUSTRALIA

PLANY & GELLER

[2014] FamCA 114

FAMILY LAW – SPOUSAL MAINTENANCE – wife’s application for periodic spousal maintenance until 31 December 2017 – application for husband to pay the wife’s costs fixed but reserved at an earlier hearing.

Bevan & Bevan (1995) FLC 92-600 In the Marriage of White (1995) 92 FLC 640 Mitchell and Mitchell (1995) FLC 92-601 Curnow & Curnow (unreported, Family Court of Australia, Ellis, Kay and Moore JJ, 28 April 1997)
Family Law Act 1975 (Cth) ss 72, 74, 75, 117
APPLICANT:	Ms Plany

RESPONDENT:

Mr Geller

FILE NUMBER:

MLC

841

2010

DATE DELIVERED:

7 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

2 December 2013

REPRESENTATION

SOLICITOR/ADVOCATE FOR THE APPLICANT:

Mr Hogan

SOLICITOR FOR THE APPLICANT:

Coulter Roache Lawyers

THE RESPONDENT:

In person

Orders

The husband pay to the wife for her maintenance the sum of $50 per week, payable monthly in advance, commencing on 1 April 2014 and finishing on

31 December 2016.
All payments pursuant to paragraph 1 be paid into a bank account by direct debit as nominated by the wife.
All payments pursuant to paragraph 1 are conditional upon the wife confirming by written notification to the husband that she remains enrolled for a Bachelor of … degree or postgraduate tertiary course and that she is making satisfactory progress in that course. Notification is to be made at the commencement of each semester.
The wife’s application that the husband pay her costs fixed at $1,630.25 but reserved on 3 July 2012 is dismissed.
The husband’s application for travel costs of this hearing is dismissed.
The parties’ application for costs of this hearing are reserved.
On or before 4.00 pm on 7 April 2014 the parties file and serve written submissions in support of any application for costs arising out of or incidental to the hearing on 2 December 2013.

AND THE COURT NOTES THAT:

The wife has given a personal undertaking on oath to the Court on 2 December 2013, that she will immediately inform the husband of any improvement or change in her financial circumstances at any time before 31 December 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Plany & Geller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:

Ms Plany

Applicant

And

Mr Geller

Respondent

REASONS FOR JUDGMENT

Orders were made in this Court, by consent between the parties, finalising property matters on 2 February 2012. Two months later, the wife made an application to this Court for an order that the husband pay her periodic spousal maintenance. These reasons for judgment determine that application together with subsequent applications for costs by both parties.

Background

The parties were married in January 1992, separated in July 2009 and divorced in July 2012. There are five children of the marriage, aged 20, 15,…

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 Plany and Geller

Details

AGLC: Plany and Geller [2014] FamCA 114
Case: [2014] FamCA 114
Decision Date

CaseChat Overview and Summary

In *Plany & Geller* [2014] FamCA 114, the Family Court of Australia considered an application by the wife for periodic spousal maintenance and for the husband to pay her costs fixed but reserved at an earlier hearing. The parties had previously finalised property matters by consent in February 2012, and parenting orders were made by consent in October 2011. The wife sought spousal maintenance of $125 per week until 31 December 2017 to enable her to complete her university studies and secure employment in the education field. The husband opposed the application, arguing that he had paid sufficient interim maintenance, that the wife had an adequate ability to support herself, and that his financial circumstances had deteriorated.

The primary legal issues before the Court were whether the wife met the threshold test for spousal maintenance under section 72 of the *Family Law Act 1975* (Cth), and if so, what order for maintenance, if any, was appropriate under sections 74 and 75(2) of the Act. The Court also had to determine the wife's application for costs from a previous hearing and the parties' costs for the current hearing. The husband also sought that any spousal maintenance order cease upon the wife receiving funds from a particular investment.

Thornton J applied the principles outlined in *Bevan & Bevan* (1995) FLC 92-600, requiring a threshold finding under s 72, consideration of s 74 and s 75(2), and noting that the pre-separation standard of living is not automatically awarded. The Court found that the wife was unable to adequately support herself due to her role as primary carer of four young children and her part-time university studies, which were aimed at increasing her earning capacity. The Court considered the various factors under s 75(2), including the parties' ages, health, financial resources, and the need to protect the wife's role as a parent and her efforts to gain future employment. The husband's opposition was largely dismissed, with the Court finding his financial circumstances did not preclude an order for maintenance, and that the wife had made reasonable efforts to improve her financial independence.

The Court ordered that the husband pay the wife spousal maintenance of $50 per week, payable monthly in advance, commencing on 1 April 2014 and ceasing on 31 December 2017. This payment was conditional upon the wife providing written notification at the commencement of each semester confirming her enrolment and satisfactory progress in her degree or postgraduate course. The wife's application for costs fixed at $1,630.25 from the 3 July 2012 hearing was dismissed, as was the husband's application for travel costs for the current hearing. The parties' costs for the hearing on 2 December 2013 were reserved, with written submissions to be filed by 7 April 2014. The Court also noted the wife's undertaking to inform the husband of any improvement in her financial circumstances.

Orders