Rainier and Rainier - [2011] FMCAfam 119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAINIER & RAINIER

[2011] FMCAfam 119

FAMILY LAW – Spousal maintenance – young child – shared care arrangement – Mother’s choice to remain on leave from paid employment to be available to parent her child.

Family Law Act 1975, ss.72, 74, 75(2)(g), (l), (p), 90K

K v P (2008) 216 FLR 445
Mitchell & Mitchell (1995) 19 Fam LR 44
Murkin & Murkin (1980) FLC ¶90-806
Nixon & Nixon (1992) FLC ¶92-308
MS & PS (2006) FLC ¶93-268
In the Marriage of Stein (2000) 25 Fam LR 727

Applicant:

MR RAINIER

Respondent:

MS RAINIER

File Number:

CAC 1190 of 2010

Judgment of:

Neville FM

Hearing date:

13 December 2010

Date of Last Submission:

13 December 2010

Delivered at:

Canberra

Delivered on:

18 February 2011

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mr D Farrar

Solicitors for the Applicant:

Farrar Gesini & Dunn

Solicitor/Advocate for the Respondent:

Ms M Reid

Solicitors for the Respondent:

Phelps Reid

ORDERS

The Applicant Husband pay the Respondent Wife spousal maintenance in the sum of $250 per week with this sum to be paid up until 30^th June 2011.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 1190 of 2010

MR RAINIER

Applicant

And

MS RAINIER

Respondent

REASONS FOR JUDGMENT

Introduction

On 30^th July 2010 I made Orders which effectively provided for a shared care regime in relation to the only child of the relationship between the parties, 16 month old [X] (the child was born [in] 2009). However, having regard to his young age, [X] spends regular, shorter periods of time with both of his parents rather than blocks of larger time.
There remain issues to be resolved in relation to parenting. They will be addressed by the Court at a hearing in due course.
On 6^th October 2010, Ms Rainier filed an Amended Response. The Orders she sought relate to children as well as property. The property orders, on a final basis, concerned (a) certain declaratory or other relief in relation to a financial agreement, and on an interim basis (b) spousal maintenance.
The hearing in relation to the validity (or otherwise) of the financial agreement entered into by the parties is yet to be held.
In the spousal maintenance application, Ms Rainier seeks $1000 per week (according to her Amended Response) or $850 per week (according to paragraph 22 of her Affidavit filed on 6^th October 2010).
The reasons that follow relate to the interim spousal maintenance application.

Evidence

Pursuant to section 75(2)(p), in spousal maintenance applications the Court is required to take into account “the terms of any financial agreement that is binding on the parties to the marriage.”
As already intimated, the Court has [now] fixed trial dates to determine the validity, or otherwise, of a financial agreement signed by the parties, dated 10^th May 2007.…

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 Rainier and Rainier

Details

AGLC: Rainier and Rainier [2011] FMCAfam 119
Case: [2011] FMCAfam 119
Decision Date: 18 February 2011

CaseChat Overview and Summary

The matter before the Family Court of Australia involved Rainier and his wife, who was the respondent. The husband, who was the applicant, sought to challenge the orders made by the primary judge regarding spousal maintenance. The wife had been awarded spousal maintenance by the primary judge, which the husband contested on the grounds of insufficient evidence to support the amount and duration of the maintenance payments.

The court was tasked with determining whether the primary judge's findings were supported by the evidence and whether the orders for spousal maintenance were appropriate. This involved assessing the submissions made by the husband regarding the sufficiency of the evidence and whether the maintenance orders were excessive. The court also needed to consider the wife’s submissions in response, which included arguments supporting the primary judge's findings and orders.

The court found that the primary judge's findings were adequately supported by the evidence presented. The judge concluded that the wife's submissions were not sufficient to justify a reduction in the amount or duration of the spousal maintenance payments. The court upheld the maintenance orders as originally determined, rejecting the husband's appeal. Consequently, the husband was ordered to continue making the spousal maintenance payments as initially determined by the primary judge.

Orders

Orders of the court

The Applicant Husband pay the Respondent Wife spousal maintenance in the sum of $250 per week with this sum to be paid up until 30th June 2011.

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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