Tamson and Moritz - [2019] FamCA 552

FAMILY COURT OF AUSTRALIA

TAMSON & MORITZ

[2019] FamCA 552

FAMILY LAW – VARIATION OF SPOUSE MAINTENANCE ORDER – Where application to vary de facto spouse maintenance order s 90SI(3) Family Law Act1975 (Cth) – Where primary order made by consent – Where both parties represented at time of consent order – Where consideration of applicable principles – Where wife fails to make out ground to enliven jurisdiction to vary order – Where application dismissed

Family Law Act 1975 (Cth) ss 78, 90SI

Cuny & Cuny (No. 2) [2014] FamCA 884

APPLICANT:

Ms Tamson

RESPONDENT:

Mr Moritz

FILE NUMBER:

PAC

3629

2017

DATE DELIVERED:

15 August 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

23 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rosic

SOLICITOR FOR THE APPLICANT:

Rowlandson & Co Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Campton SC with him Mr Gardiner

SOLICITOR FOR THE RESPONDENT:

Coleman Greig Lawyers

Orders

That the wife’s application for variation of spouse maintenance be dismissed.

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 under the pseudonym Tamson & Moritz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3629 of 2017

Ms Tamson

Applicant

And

Mr Moritz

Respondent

REASONS FOR JUDGMENT

The application for determination is an application by the former de facto spouse for variation of a periodic spousal maintenance order made by consent on 1 September 2017.
Section 90SI of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
(1)If there is in force an order with respect to the maintenance of a party to a de facto relationship in accordance with this Division:
(a)made by the court; or
(b)made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;
the court may:
(c)discharge the order if there is any just cause for so doing; or
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event; or
(e)revive wholly or in part an order suspended under paragraph (d); or
(f)subject to subsection (3), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(2)The court's jurisdiction under subsection (1) may be exercised:
(a)in any case--in proceedings with respect to the maintenance of a party to the de facto relationship in accordance with this Division; or
(b)if there is a bankrupt party to the de facto…

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 Tamson and Moritz

Details

AGLC: Tamson and Moritz [2019] FamCA 552
Case: [2019] FamCA 552
Decision Date: 15 August 2019

CaseChat Overview and Summary

The wife sought a variation of a spousal maintenance order made by Foster J. The husband contended that the wife had failed to disclose material facts to the Court, specifically regarding the date of separation and the existence of a prior financial agreement. The wife argued that the parties were not actually separated, and therefore the Court lacked jurisdiction to make the original orders.

The primary legal issues before the Court were whether material facts had been withheld from the Court, and whether the Court had jurisdiction to make the original spousal maintenance orders given the wife's assertion of non-separation. The Court also considered whether the wife had satisfied the requirements of s 90SI(3) of the relevant legislation to permit a variation of the existing order.

Foster J rejected the wife's contention that the parties were not separated, noting that she herself had represented a date of separation in a joint application for consent orders. The Court held that the power to make a maintenance order is consequent upon the breakdown of a de facto relationship, which can occur even if parties continue to reside in the same home. Furthermore, the Court found that the existence of a previously signed financial agreement was not a material fact that had been withheld, particularly as it was common ground that the parties had subsequently signed a termination agreement. Consequently, the wife failed to satisfy the Court that the provisions of s 90SI(3) were enlivened to allow for a variation of the existing order.

The wife's application for variation of spouse maintenance was dismissed.

Orders

Orders of the court

That the wife’s application for variation of spouse maintenance be dismissed.

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

Background

Background to the litigation

Otherwise, in the context of spousal maintenance there is no evidence that “material facts” were withheld from the Court. It is contended that the issue of the parties’ separation was not properly before the Court. The wife contended that the parties were in fact not separated and thus the Court had no jurisdiction to make the impugned orders. That contention is rejected. She herself represented to the Court the date of separation in the joint application for consent orders. The power to make a maintenance order is consequent upon the “breakdown” of the de facto relationship. Such is often the case yet parties continue to occupy the same home. It is further contended that the parties did not disclose the existence of a previously signed financial agreement. Yet it is common ground that the parties has later signed a termination agreement. There was no asserted bar to the spouse maintenance order being made by consent. By reason of the above discussion, the wife has failed to satisfy the Court that the provisions of s 90SI(3) are enlivened so as to allow the Court to consider a variation of the present order. The wife’s application will be dismissed.

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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