SMYLLIE & SMYLLIE - [2019] FamCA 318

FAMILY COURT OF AUSTRALIA

SMYLLIE & SMYLLIE

[2019] FamCA 318

FAMILY LAW – PROPERTY – Interim order – Where the wife sought an order for exclusive possession – Where the husband eventually did not contest such an order – Where the property was in the wife’s name – Where it was not reasonable, sensible or practicable that the parties be required to live together – Application granted – Wife to retain exclusive possession and be responsible for all outgoings.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the husband seeks various spousal maintenance orders – Where the onus was on the husband to prove that he cannot adequately support himself – Where the husband’s capacity to support himself was limited due to a period of incarceration – Where the wife financially supported the husband through the period of incarceration – Where the Court found this as an indication that the husband had no other means to adequately support himself – Orders made for lump sum and periodic maintenance.

Family Law Act 1975 (Cth) ss 72, 74, 75(2)

Hall & Hall [2016] HCA 23

APPLICANT:

Ms Smyllie

RESPONDENT:

Mr Smyllie

FILE NUMBER:

SYC

2168

2019

DATE DELIVERED:

6 May 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

6 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

York Law

COUNSEL FOR THE RESPONDENT:

Mr Looney QC

SOLICITOR FOR THE RESPONDENT:

McInnes Wilson Lawyers

Orders

The husband is to vacate the Suburb A property within 14 days of the date of this Order.
The wife is to have the sole right to occupy the Suburb A property and is to be responsible for all expenses associated with the property, including but not limited to, mortgage repayments, council rates, water charges and home and contents insurance.
Pursuant to s 72 and s 74 of the Family Law Act1975 (Cth), within seven days the wife shall pay to the husband:
(a)The amount of $26,000 net by way of lump sum spouse maintenance; and
(b)The amount of $1,200 net by way of periodic maintenance, with such payment to be made no later than Friday of each week, with the first payment to be paid by the first Friday of this Order.
Within 14 days of the date of these Orders, the wife is to pay the husband the sum of $25,000 for the purchase of a motor vehicle.
The amount referred to in Order 3(a) be applied only for the purposes of rental accommodation for the husband and that the amount referred to in Order 4 be applied only for the purchase of a motor vehicle for the husband’s use.
From six month’s from today’s date the periodic amount of $1,200 per week pursuant to Order 3(b) be increased to $2,200 per week pending further order.

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

IT IS NOTED that publication of this judgment by this Court…

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: SMYLLIE & SMYLLIE [2019] FamCA 318
Case: [2019] FamCA 318
Decision Date: 6 May 2019

CaseChat Overview and Summary

In *Smyllie & Smyllie*, the wife sought an order for exclusive possession of the former matrimonial home, which was registered in her name. The husband did not contest this application. The wife also sought spousal maintenance orders against the husband.

The court was required to determine whether it was reasonable, sensible, or practicable for the parties to continue living together, and if not, to grant the wife exclusive possession of the property. Additionally, the court had to consider the husband's application for spousal maintenance, specifically whether he had proven he could not adequately support himself, and if so, to determine the appropriate quantum of maintenance.

Loughnan J found that it was not reasonable, sensible, or practicable for the parties to reside together, and therefore granted the wife exclusive possession of the Suburb A property, making her responsible for all associated outgoings. Regarding spousal maintenance, the court noted the husband's limited capacity to support himself due to a period of incarceration, and the wife's prior financial support of him during that time, as evidence that he lacked other means of adequate self-support. Consequently, the court made orders for both a lump sum and periodic spousal maintenance payment to the husband.

The court ordered the husband to vacate the Suburb A property within 14 days, with the wife to have sole occupation and responsibility for all property expenses. The wife was also ordered to pay the husband $26,000 net by way of lump sum spousal maintenance and $1,200 net per week by way of periodic maintenance, with specific conditions on the use of these funds. Further, the wife was to pay the husband $25,000 for the purchase of a motor vehicle within 14 days. The periodic maintenance amount was to increase to $2,200 per week after six months, pending further order.

Orders

Orders of the court

The husband is to vacate the Suburb A property within 14 days of the date of this Order.

The wife is to have the sole right to occupy the Suburb A property and is to be responsible for all expenses associated with the property, including but not limited to, mortgage repayments, council rates, water charges and home and contents insurance.

Pursuant to s 72 and s 74 of the Family Law Act 1975 (Cth), within seven days the wife shall pay to the husband:

(a) The amount of $26,000 net by way of lump sum spouse maintenance; and

(b) The amount of $1,200 net by way of periodic maintenance, with such payment to be made no later than Friday of each week, with the first payment to be paid by the first Friday of this Order.

Within 14 days of the date of these Orders, the wife is to pay the husband the sum of $25,000 for the purchase of a motor vehicle.

The amount referred to in Order 3(a) be applied only for the purposes of rental accommodation for the husband and that the amount referred to in Order 4 be applied only for the purchase of a motor vehicle for the husband’s use.

From six month’s from today’s date the periodic amount of $1,200 per week pursuant to Order 3(b) be increased to $2,200 per week pending further order.

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

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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