STOCK & MAUDLIN - [2019] FCCA 2919

FEDERAL CIRCUIT COURT OF AUSTRALIA

STOCK & MAUDLIN

[2019] FCCA 2919

Catchwords:
FAMILY LAW – Spousal maintenance – application to discharge orders – respondent cohabiting with another person – lack of full and frank disclosure – order discharged.

Legislation:

Family Law Act 1975 (Cth), ss.72, 75, 81(3)(c), 117(1)

Cases cited:

Jones v Dunkel (1959) 101 CLR 298
Cooper & Kingsley [2013] FCCA 277
Cooper & Kingsley [2014] FamCAFC 205
Wreford & Caley (2010) 238 FLR 88
Daniels and Bell (2007) FLC 93-315
In the marriage of Weir (1992) 110 FLR 403

Applicant:

MR STOCK

Respondent:

MS MAUDLIN

File Number:

DNC 483 of 2018

Judgment of:

Judge Young

Hearing dates:

9 May 2019, 3 September 2019

Date of Last Submission:

3 September 2019

Delivered at:

Darwin

Delivered on:

14 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr Barry

Solicitors for the Applicant:

Darwin Family Law

Counsel for the Respondent:

Mr Felkel

Solicitors for the Respondent:

Go to Court Lawyers

ORDERS

Order 1 of the orders of Watt J made on 17 March 2000 that the husband pay to the wife for her maintenance the sum of $100 per week is discharged.
The arrears of maintenance under that order are fixed at $11,600 and those arrears, apart from the sum of $3,400, are discharged.
The applicant is to pay the respondent the sum of $3,400 within 60 days.
There is no order for costs.
All other extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 483 of 2018

MR STOCK

Applicant

And

MS MAUDLIN

Respondent

REASONS FOR JUDGMENT

This is an application to discharge a spousal maintenance order made on 17 March 2000 by the Family Court in Melbourne and to discharge the arrears under that order. The respondent also seeks an order for her costs in pursuing payment of an amount of superannuation that she says was due to her under property orders made at the same time.
The spousal maintenance order was for payment of $100 a week. The duration of the order was indefinite.
An order for spousal maintenance may be discharged under section 83(1)(c) of the Family Law Act 1975 (the Act) “if there is any just cause for so doing”. The “just cause” relied on for the purpose of section 83(1)(c) was manifold: it was asserted that the order of 17 March 2000 was, in reality, an interim order; that the applicant’s circumstances had changed; and that the respondent had failed to make proper disclosure of her financial circumstances. In relation to the first point, this is without merit. There is nothing to suggest that the order was anything other than a final order. I am also not persuaded that there has been any significant change in the applicant’s circumstances.
However, after I reserved judgment the applicant applied to reopen his case to allege…

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 STOCK & MAUDLIN

Details

AGLC: Stock and Maudlin [2019] FCCA 2919
Case: [2019] FCCA 2919
Decision Date: 14 October 2019

CaseChat Overview and Summary

In *Stock & Maudlin*, the applicant husband sought to discharge spousal maintenance orders made against him in favour of the respondent wife. The primary basis for the application was the wife's alleged cohabitation with another person and a failure to make full and frank disclosure of her financial circumstances. The matter came before Judge Young.

The court was required to determine whether the circumstances had so significantly changed since the making of the original maintenance orders as to warrant their discharge. Specifically, the court had to consider the impact of the wife's cohabitation on her need for maintenance and whether any non-disclosure by the wife constituted a material misrepresentation that would justify setting aside the existing orders.

Judge Young found that the wife had indeed cohabited with another person for a substantial period, which altered her financial position and reduced her need for spousal maintenance. Furthermore, the court determined that the wife had failed to make full and frank disclosure of her financial circumstances at the time the original orders were made. Applying the principles of family law concerning spousal maintenance and the court's power to discharge or vary such orders in response to changed circumstances or material non-disclosure, the court concluded that the original orders should be discharged.

Consequently, the order requiring the husband to pay $100 per week in spousal maintenance was discharged. Arrears of maintenance were fixed at $11,600, with all but $3,400 of these arrears being discharged. The applicant husband was ordered to pay the respondent wife the sum of $3,400 within 60 days. There was no order for costs, and all other extant applications were dismissed.

Orders

Orders of the court

Order 1 of the orders of Watt J made on 17 March 2000 that the husband pay to the wife for her maintenance the sum of $100 per week is discharged.

The arrears of maintenance under that order are fixed at $11,600 and those arrears, apart from the sum of $3,400, are discharged.

The applicant is to pay the respondent the sum of $3,400 within 60 days.

There is no order for costs.

All other extant applications are dismissed.

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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