Reynes & Dionett

Case [2024] FedCFamC1F 174

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Reynes & Dionett [2024] FedCFamC1F 174

File number(s): SYC 1686 of 2012
Judgment of: ALTOBELLI J
Date of judgment: 13 March 2024
Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE – CHILD SUPPORT DEPARTURE – The wife seeks an increase in spousal maintenance – Where it has been 13 years since separation – The wife has long standing health issues – The husband seeks that his child support arrears be waived – The wife seeks that the administrative assessment for her to pay child support be reduced to nil – It is ordered that the husband is to pay the wife $695 per week for spousal maintenance for a period of five years – The Court declines to make any orders in relation to a child support departure.
Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 116, 117

Family Law Act 1975 (Cth) ss 72, 74, 75
Cases cited:

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

MS & PS (2006) FLC 93-268; [2006] FamCA 588;
Division: Division 1 First Instance
Number of paragraphs: 47
Date of last submission/s: 12 March 2024
Date of hearing: 11–12 March 2024
Place: Sydney
Counsel for the Applicant: Ms Dalrymple
Solicitor for the Applicant: Kamara Lawyers & Advisors
Counsel for the Respondent: Mr Alexander
Solicitor for the Respondent: Legal Aid NSW Child Support (Parramatta) Family Law

ORDERS

SYC 1686 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DIONETT

Applicant
AND:

MS REYNES

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 MARCH 2024

THE COURT ORDERS THAT:

1.All previous orders in this matter for spousal maintenance and child support (including any stay order preventing collection of the Applicant’s child support arrears) are discharged.

2.Pursuant to s 83 of the Family Law Act 1975 (Cth), the spousal maintenance order made on 7 September 2017 be varied such that the Applicant pays to the Respondent the sum of $695 weekly, commencing as at the date of these orders and continuing for a period of five years.

3.The spousal maintenance order above be varied each year in accordance with upward variations in the consumer price index published by the Commonwealth statistician for all groups Sydney with a base date being the index applicable at the date of this order.

4.The order for spousal maintenance will cease upon the Respondent resuming full-time paid employment, should that occur before the fifth anniversary of the making of these orders.

5.All other applications of the Applicant and Respondent are dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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AGLC
Reynes & Dionett [2024] FedCFamC1F 174
Case
[2024] FedCFamC1F 174
Decision Date

CaseChat Overview and Summary

The matter before the Court involved a dispute between Mr Dionett (the applicant) and Ms Reynes (the respondent) concerning spousal maintenance and child support. Both parties were represented by counsel, and the case was heard over two days. The applicant, who is 60 years old, sought to have the arrears of child support waived and for the administrative assessment for the respondent to pay child support to be reduced to nil. The respondent, who is 53 years old and unemployed, sought an increase in spousal maintenance, arguing that she has long-standing health issues and lacks a social security safety net in Australia. The Court was required to decide on the appropriate quantum and duration of spousal maintenance, as well as whether to waive the child support arrears and alter the child support assessment.

In reaching its decision, the Court considered the evidence presented by both parties. The respondent provided medical evidence indicating that she suffers from a medical condition and major depression, which makes it unlikely she will be able to work in any form of gainful employment. The Court accepted this evidence and concluded that the respondent would continue to need spousal maintenance for the foreseeable future. The applicant had conceded that he could continue paying the current amount of spousal maintenance until he retired, which he expected to be at age 67. The Court found that the respondent's activities, such as volunteering and baking, did not significantly alter her financial need. It also noted that the applicant's case seemed to rely on tenuous evidence, such as baking and social media messages, which did not convincingly demonstrate that the respondent could generate sufficient income to reduce her need for spousal maintenance.

The Court determined that the respondent was in need of spousal maintenance for a period of five years, commencing at the date of the order. It ordered that the applicant pay the respondent $695 per week, with the amount to be reviewed annually in accordance with the consumer price index. The Court declined to make any orders in relation to the child support arrears or the administrative assessment for the respondent to pay child support. All other applications were dismissed.

The final orders of the Court were that all previous orders for spousal maintenance and child support were discharged, and a new spousal maintenance order was made. The new order required the applicant to pay the respondent $695 weekly for a period of five years, subject to annual variation according to the consumer price index, and it would cease if the respondent resumed full-time paid employment before the fifth anniversary of the making of these orders.

Orders

Orders of the court

SYC 1686 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DIONETT

Applicant

AND:

MS REYNES

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 MARCH 2024

THE COURT ORDERS THAT:

1. All previous orders in this matter for spousal maintenance and child support (including any stay order preventing collection of the Applicant’s child support arrears) are discharged.

2. Pursuant to s 83 of the Family Law Act 1975 (Cth), the spousal maintenance order made on 7 September 2017 be varied such that the Applicant pays to the Respondent the sum of $695 weekly, commencing as at the date of these orders and continuing for a period of five years.

3. The spousal maintenance order above be varied each year in accordance with upward variations in the consumer price index published by the Commonwealth statistician for all groups Sydney with a base date being the index applicable at the date of this order.

4. The order for spousal maintenance will cease upon the Respondent resuming full-time paid employment, should that occur before the fifth anniversary of the making of these orders.

5. All other applications of the Applicant and Respondent are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I have made orders today following the hearing that occurred on Monday and Tuesday of this week. The case was about spousal maintenance and child support. BACKGROUND This is a 2012 file and the Application that I am asked to determine was filed on 5 September 2017. Despite the inexplicable antiquity of this matter, on Monday morning I was asked to adjourn the case. I declined. It was neither in the interests of the parties nor in the public interest for this long running matter not to be heard and finalised. I did stand the matter down for a few hours. Both parties were competently represented by solicitor and counsel albeit, it would seem, counsel who came into the matter on short notice. In the applicant’s (“the applicant”) case, some of his material had been prepared whilst he was representing himself. By the time of closing submissions, both counsel had acknowledged to the Court that in some respects the evidence was incomplete and that the Court would simply have to do the best it can. The applicant is 60 years old and describes himself as a manager. The respondent (“the respondent”) is 53 years old and describes herself as unemployed. They commenced their relationship in 1989, cohabited from 1990, married in 2001, and separated on a final basis in 2011. They have one daughter, C (“the child”), who is 15 years old and who presently lives with the applicant. This arrangement commenced in about 2022, but before then, the respondent was the primary carer of the child. The respondent is unemployed. She does not have permanent residence in Australia. She is not entitled to Centrelink benefits. Her only source of income is rental that she receives from a property in the United Kingdom and $200 per week from spousal maintenance currently paid by the applicant. It is clear that the respondent has struggled with her health, insecure accommodation and simply making ends meet. The applicant has been diligent in paying spousal maintenance as ordered. The first such order was made on 11 August 2014, when he was required to pay spousal maintenance of $870 per week. This was part of final orders altering property interests. On 7 September 2017, the spousal maintenance was reduced to $200 per week. Whilst the child lived with the respondent, the applicant was assessed to pay child support. By way of Court order made 27 August 2015, this was stayed. Considerable arrears have accrued. The applicant seeks that those arrears be waived.COMPETING PROPOSALS The applicant sought orders in accordance with his Amended Application filed 5 September 2017. He sought a departure from the administrative assessment that he be required to pay child support for the child in respect of the period from 11 August 2014 to the date of these orders and that the assessment be reduced to nil. He opposes the orders sought by the respondent. The respondent sought orders in accordance with her Further Amended Response filed 25 January 2024. By the time of closing submissions, her counsel explained that she sought spousal maintenance for a period of five years in the sum of about $800 per week with the amount to be reviewed annually in accordance with the consumer price index. This was by way of application to vary the current spousal maintenance order under s 83 of the Family Law Act 1975 (Cth) (“the Act”). The respondent also sought a departure in relation to the administrative assessment for her to pay child support in relation to the child. The respondent opposed the applicant’s orders. She did not, however, press an order that all previous costs orders made against her be discharged. Not pressing this order was the appropriate thing to do in the circumstances. APPLICABLE LAWSpousal maintenance

Evidence

Evidence Before The Court

The respondent was also understandably focussed, but on a different thing. For her, it was financial survival. In closing submissions, her counsel referred to the respondent as living a desperate life financially. As it turns out, the fact of this is undisputable. In circumstances where there was no social security safety net for her in Australia, the application of the relevant provisions of the Act meant that the Court had to decide the extent to which, if at all, the applicant was to pay spousal maintenance and for what period of time. EVIDENCE BEFORE THE COURT In support of his case, the applicant relied on the following documents:(1)Amended Initiating Application filed 5 September 2017;(2)His affidavit filed 4 March 2024; (3)Financial statement filed 4 March 2024;(4)Case outline filed 11 March 2024; and(5)Document tendered during the proceedings and marked Exhibit A1. In support of her case, the respondent relied on the following documents:(1)Further Amended Response filed 24 January 2024;(2)Her affidavit filed 9 February 2024;(3)Financial statement filed 9 February 2024;(4)Expert report of Dr W filed 10 October 2023;(5)Case outline filed 4 March 2024; and(6)Various documents tendered during the proceedings and marked Exhibits R1–R8.SPOUSAL MAINTENANCEWhether the respondent is in need of spousal maintenance A number of issues presented. The first issue is whether the respondent is in need of spousal maintenance. The medical evidence from Dr W, Professor X and Ms Y all establish that the respondent suffers from a medical condition and major depression and is unlikely to be able to work in any form of gainful employment. This evidence indicates that it is an ongoing condition. There is nothing in the evidence before the Court to suggest that this will change. In particular, in circumstances where she seeks spousal maintenance for five years, there is nothing before this Court to suggest that her need for maintenance will change in that time. The issue put in contention by the applicant is the quantum of the maintenance to be paid and the period in respect of which it should be paid. The applicant conceded that he had the capacity to continue to pay $200 per week until such time as he retired which he expected would be when he turns 67. He is currently 60 years of age. The Court heard evidence about activities conducted by the respondent such as volunteering and baking which, according to the applicant, was indicative of an earning capacity. The respondent explained away these activities as pastimes which neither generated income nor caused her to incur significant expense. The Court accepts that some of the respondent’s activities, whether she considers them as pastimes or otherwise, might be capable of generating income, but there was no suggestion that actual income was earned or that this income would be substantial or, quite frankly, that it would make any significant difference to her financial need. Even if she was generating a modest income from these pastimes (an unlikely scenario on the evidence), it would not make a difference. I must state my concern that the applicant’s case was run on the basis of evidence about baking, Australian Business Numbers and social media messages. One wonders whether this litigation could have been curtailed if a more clear-sighted and robust view had been adopted about this issue.The quantum of need

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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