S and S - [2008] FCWA 47

[2008] FCWA 47

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975 CHILD SUPPORT (ASSESSMENT) ACT 1989
LOCATION	:	PERTH
CITATION	:	S and S [2008] FCWA 47
CORAM	:	MARTIN J
HEARD	:	25 MARCH 2008
DELIVERED	:	2 MAY 2008
FILE NO/S	:	PT 501 of 2008
BETWEEN	:	S
Applicant/Wife
AND
S Respondent/Husband
Catchwords:

FAMILY LAW - interim orders - spousal maintenance - departure from Child Support

Assessment

Legislation:

Family Law Act 1975 - s 72, s 74 and s 75

Child Support Assessment Act 1989 - s 117

Category: Not Reportable

Representation:

Counsel:

Applicant:	Mr Hooper
Respondent:	Mr Wilson SC

[2008] FCWA 47

Solicitors:

Applicant:	Dwyer Durack
Respondent:	O'Sullivan Davies

Case(s) referred to in judgment(s):

Gyselman and Gyselman (1992) FLC 92-279
Kiesinger & Paget [2008] FamCAFC 23
Mitchell and Mitchell (1995) FLC 92-601

[2008] FCWA 47

1 The issue to be determined is the wife’s Form 2 application, seeking injunctions, interim spousal maintenance and child support departure.
2 On the hearing date of 25 March 2008, several issues were resolved between the parties, and I made orders to reflect the position.
3 In relation to the injunctions sought by the wife, which largely relate to
preventing the husband from dealing with certain assets, the husband was prepared to give undertakings on a without admission basis. The husband also agreed that he would continue to meet the private health insurance premiums of the wife.
4 Pending determination of the proceedings, I made an order that the husband

continue to deposit $2,000 per fortnight into the wife’s account and meet various
expenses relating to the parties’ children.
5 At the conclusion of the hearing I made the following orders:
“And on the undertaking of the respondent, [Mr S], given to the Court, on a
without admission basis, until further order or unless excused by the Court:

(a)

to give the Applicant, [Mrs S], not less than 21 days’ prior written notice of any intention to dispose of any item of property having a value of greater than $10,000 (and including those that he owns and which are specified in paragraph 1 of the annexure to the Form 2 Application filed by the Applicant on 7 February 2008);

(b)

to give the Applicant not less than 21 days’ prior written notice of any intention to further encumber any item of his property;

(c)

to give the wife not less than 21 days’ prior written notice of any intention to transfer, assign or further encumber his shares in, or resign as a Director of, the following companies:

(i) [AB] Investments Pty Ltd;
(ii) [HT] Investments Pty Ltd;
(iii) [TCO] Number 1 Pty Ltd;
(iv) [TCO] Number 2 Pty Ltd; and
(v) [LT] Investments Pty Ltd.

(d)

to give the Applicant not less than 21 days’ prior written notice of intention to resign any position he holds in [TCO] Number 1 Trust or [TCO] Number 2 Trust;
(e) to give the Applicant not less than 21 days’…

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 S and S

Details

AGLC: S and S [2008] FCWA 47
Case: [2008] FCWA 47
Decision Date: 2 MAY 2008

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of S and S was heard. The dispute between the parties centred on the granting of interim spousal maintenance and child support orders. The wife, S, sought interim spousal maintenance and child support, while the husband, S, contested the amount of maintenance and child support sought. The court was required to determine the appropriate amount of spousal maintenance and child support for the parties' two children.

The primary legal issue was the application of the Child Support (Assessment) Act 1989 (Cth) and whether the court should make an order for spousal maintenance that departed from the Child Support Guidelines. The court had to balance the need for the wife and children to be provided for with the husband's ability to pay. The wife argued that the husband's income was significantly higher than what the Child Support Guidelines would provide, and that the Guidelines did not adequately account for her needs. The husband contended that the Guidelines provided a fair and reasonable assessment of his child support liability.

The court found that the wife's needs were not adequately met by the child support payable under the Guidelines and that an order for spousal maintenance was necessary. The court considered the husband's capacity to pay and the wife's needs, and ordered that the husband pay spousal maintenance at a rate that was higher than the child support payable under the Guidelines. The court also ordered that the husband pay child support in accordance with the Guidelines. The court found that the wife's needs were such that a departure from the Guidelines was warranted in this case.

The court's final orders included an interim spousal maintenance payment of $2,000 per month and child support payments in accordance with the Child Support Guidelines. The court also ordered that the husband pay the wife's legal costs up to a specified amount.

Orders