SAUVETERRE & WARWICK - [2015] FamCA 1076

FAMILY COURT OF AUSTRALIA

SAUVETERRE & WARWICK

[2015] FamCA 1076

FAMILY LAW – SPOUSAL MAINTENANCE – INTERIM PROCEEDINGS – Where the wife seeks an order for interim spousal maintenance – Extent to which the wife is unable to support herself – Reasonable needs of the wife – Where the wife is an artist and doctorate student whose income is intermittent – Capacity of the husband to meet such an order – Where the husband earns a high income – Where the Court finds that a trust, of which the husband is the sole trustee, remains a financial resource available to the husband – Where the Court has disregarded various expenses claimed by both parties – Orders made for the husband to pay the wife periodic spousal maintenance – Application for the husband to pay ancillary expenses of the wife dismissed.

Family Law Act 1975 (Cth) ss 74, 75

Acton & Burton [2015] FamCA 469
Drysdale & Drysdale [2011] FamCAFC 85
Maroney & Maroney [2009] FamCAFC 45
McCrossen & McCrossen (2006) FLC 93-283
Redman & Redman (1987) FLC 91-805
Stein & Stein (2000) FLC 93-004

APPLICANT:

Ms Sauveterre

RESPONDENT:

Mr Warwick

FILE NUMBER:

SYC

3539

2015

DATE DELIVERED:

3 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

6 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bridger

SOLICITOR FOR THE APPLICANT:

Jo-Anna F S Moy Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Ford

SOLICITOR FOR THE RESPONDENT:

Clive Mills & Associates

Orders

That pursuant to section 74 of the Family Law Act1975 (Cth) the husband is to pay to the wife, or as she may direct from time to time in writing, the sum of $445 per week in spousal maintenance.
The wife’s application for payment by the husband of the wife’s mobile phone account, expenses related to the Japanese motor vehicle and private health insurance is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sauveterre & Warwick 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 SYDNEY

FILE NUMBER: SYC 3539 of 2015

Ms Sauveterre

Applicant

And

Mr Warwick

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an application for interim spousal maintenance, pending hearing of an application for final property and spousal maintenance orders. The husband opposes the application.
The application has been made in the context of consent orders made on 24 August 2015 which provided for the parties to each withdraw the sum of $50 000 from a controlled monies account which holds the net proceeds of the sale of the parties’ former matrimonial home. The orders specified that the respective payments were to be “characterised at trial.”
The orders now sought by the wife are:
1. That pursuant to section 74 of the Family Law Act 1975 the husband pay to the wife or as she may direct from time to time, the sum of $1205.00 per week…

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.

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Details

AGLC: SAUVETERRE & WARWICK [2015] FamCA 1076
Case: [2015] FamCA 1076
Decision Date: 3 December 2015

CaseChat Overview and Summary

In *Sauveterre & Warwick*, McClelland J of the Family Court of Australia considered an application for spousal maintenance. The dispute concerned the financial obligations of the husband towards the wife following their separation.

The court was required to determine whether the husband should be ordered to pay spousal maintenance to the wife, and if so, in what amount. Additionally, the court had to consider the wife's separate applications for the husband to cover her mobile phone account, expenses related to a Japanese motor vehicle, and private health insurance.

McClelland J applied section 74 of the *Family Law Act 1975* (Cth), which governs spousal maintenance. The court considered the various factors outlined in section 75(2), including the age and health of the parties, their income, property, financial resources, and earning capacities. The court also took into account the parties' existing commitments and responsibilities, the standard of living during the marriage, and the duration of the marriage and its impact on earning capacity. After weighing these factors, the court ordered the husband to pay $445 per week in spousal maintenance. The wife's applications for payment of her mobile phone account, vehicle expenses, and private health insurance were dismissed.

Orders

Orders of the court

That pursuant to section 74 of the Family Law Act 1975 (Cth) the husband is to pay to the wife, or as she may direct from time to time in writing, the sum of $445 per week in spousal maintenance.

The wife’s application for payment by the husband of the wife’s mobile phone account, expenses related to the Japanese motor vehicle and private health insurance is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 75 of the Act relevantly provides:75Matters to be taken into consideration in relation to spousal maintenance(1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).(2)The matters to be so taken into account are:(a)the age and state of health of each of the parties; and(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and(d)commitments of each of the parties that are necessary to enable the party to support:(i)himself or herself; and(ii)a child or another person that the party has a duty to maintain; and(e)the responsibilities of either party to support any other person; and(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:(i)any law of the Commonwealth, of a State or Territory or of another country; or(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;and the rate of any such pension, allowance or benefit being paid to either party; and(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and(l)the need to protect a party who wishes to continue that party’s role as a parent; and(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and(n)the terms of any order made or proposed to be made under section 79 in relation to:(i)the property of the parties; or(ii)vested bankruptcy property in relation to a bankrupt party; and(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:(i)a party to the marriage; or(ii)a person who is a party to a de facto relationship with a party to the marriage; or(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and(p)the terms of any financial agreement that is binding on the parties to the marriage; and(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.