Rollins-Wallis and Wallis

[2008] FamCA 1272

FAMILY COURT OF AUSTRALIA

ROLLINS-WALLIS & WALLIS [2008] FamCA 1272

FAMILY LAW - SPOUSAL MAINTENANCE - threshold applicability where respondent concedes his capacity and conceded a quantum of what is adequate - need to prove matters as to living expenses - matter determined on the evidence

Family Law Act 1975 (Cth)

Bevan v Bevan (1995) FLC 92-600
Brown and Brown 2007 Fam LR 59
Lindon v Commonwealth (1996) 70 ALJR 541
Mitchell v Mitchell (1995) FLC 92-601

APPLICANT: Ms Rollins-Wallis

RESPONDENT: Mr Wallis

FILE NUMBER: MLC 11709 of 2007

DATE DELIVERED: 13 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levine

SOLICITOR FOR THE APPLICANT: Issac Brott & Co

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

Orders

1. That the application in a case filed by the husband on 9 July 2008 and the response thereto of the husband filed 5 August 2008 be dismissed.

2. That the wife pay $2,800 towards the husband’s costs of this application such payment to be stayed until the conclusion of the property issues between the parties.

3. All interim applications are otherwise dismissed.

4. It is directed that the co-ordinating registrar examine the file and determine whether the case should be docketed to a registrar forthwith for trial management including holding a directions hearing on issues relating to the discovery, valuation and preparation for trial.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11709  of 2007

Ms Rollins-Wallis

Applicant

And

Mr Wallis

Respondent

REASONS FOR JUDGMENT

1. This is an application for the review of a decision of the Senior Registrar made on 2 July 2008. The Senior Registrar ordered that the husband pay to the wife $266 per week by way of spousal maintenance. He also made other orders by consent of the parties which have some impact on the outcome of the matter and I shall return to them. The Senior Registrar also ordered that the wife pay $4,000 towards the husband’s costs.

2. It is the wife who has brought the review application.

3. The wife seeks more than $266 per week and wants the costs order discharged.

4. I reserved my decision because I wanted to contemplate an argument put by counsel for the applicant wife about whether the quantum of any order had to bear some resemblance to the evidence or whether I was completely at large and exercising an entirely discretionary and unfettered judgment.

5. In my view, the answer is that the former rather than the latter is right.

6. The application to review is a de novo hearing.

7. Each party was represented by counsel.  At the start of the case, I inquired what material each was relying upon. I read that material and in one case, made a ruling upon it. I permitted some limited…