Tausen & Kemper - [2025] FedCFamC2F 309

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tausen & Kemper [2025] FedCFamC2F 309

File number(s): MLC 1775 of 2025

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 28 February 2025

Catchwords: FAMILY LAW – Interim spousal maintenance – Application for leave to file and prosecute application out of time – Where applicant de facto wife has significant history of mental ill health and hospitalisations – Where respondent de facto husband was paying maintenance on a voluntary basis for a substantial period after separation until recently – Hardship to applicant of not being granted leave to prosecute application established in circumstances where applicant deemed unable to adequately support herself without income tested benefit or pension – Leave granted to file out of time – Interim spousal maintenance ordered – Where applicant’s expenditure is reasonable – Where respondent is able to make small economies in expenditure – Respondent ordered to pay applicant’s rent directly to real estate agent – Respondent ordered to pay applicant’s health insurance in circumstances where she is highly dependent on it.

Legislation: Family Law Act1975 (Cth) ss 44(5), 44(6), 90SF

Cases cited: Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932

Division: Division 2 Family Law

Number of paragraphs: 42

Date of hearing: 28 February 2025

Place: Melbourne

Counsel for the Applicant: Mr Hall

Solicitor for the Applicant: Easton Legal

Solicitor for the Respondent: Ms Palbas, Thelma Palbas & Associates
ORDERS

MLC 1775 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TAUSEN

Applicant

AND:
MR KEMPER

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:
Leave to prosecute out of time
1.Pursuant to section 44(6) of the Family Law Act 1975 (Cth), the applicant wife, MS TAUSEN (‘the Wife’), be and is granted leave to file and prosecute her application dated 17 February 2025.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Interim spousal maintenance
2.Within 7 days of receiving his pay each month, the respondent husband, MR KEMPER (‘the Husband’), pay the Wife’s rent by direct debit from his salary directly to the real estate agent managing the rental property wherein the Wife resides.
3.The Husband forthwith do all acts and things to reinstate and pay the Wife’s private health insurance premium by direct debit as and when due.

AND THE COURT ORDERS THAT:
4.Upon receipt of any amount of lump sum total permanent disability (‘TPD’) payment received by the Wife, the Husband and his solicitor be immediately informed of that circumstance by the Wife’s solicitor.
5.The Wife do all act and things to ensure that Motor Vehicle 1 (‘Motor Vehicle 1’) is made available for collection by the Husband at B Street, Suburb C, VIC on or before 4.00 pm on Saturday 8 March 2025.
6.The Husband forthwith take out a cover note to ensure that Motor Vehicle 1 is insured as soon as practical and, when he has done so, the Husband confirm same to the…

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 Tausen & Kemper

Details

AGLC: Tausen & Kemper [2025] FedCFamC2F 309
Case: [2025] FedCFamC2F 309
Decision Date: 28 February 2025

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Tausen, the applicant, sought interim spousal maintenance from Mr Kemper, the respondent, who had been her de facto husband. The case primarily revolved around the applicant's request for leave to file and prosecute her application out of time, given her history of mental health issues and hospitalisations, which impeded her ability to manage her affairs effectively. The respondent had voluntarily been paying maintenance until recently but had ceased doing so. The court needed to determine whether the applicant could adequately support herself without income-tested benefits or a pension and whether it was just and equitable to grant the applicant leave to prosecute the application outside the usual time limits.

The court examined the applicant's financial situation and concluded that she was unable to adequately support herself without government assistance, establishing the necessary hardship to grant the leave. The respondent, while capable of making small economies in his expenditure, was financially able to contribute to the applicant's maintenance needs. The court granted the applicant leave to prosecute the application out of time and ordered interim spousal maintenance. The respondent was directed to pay the applicant's rent directly to the real estate agent and reinstate her private health insurance by direct debit. Additionally, the court ordered that any lump sum total permanent disability payment received by the applicant must be immediately reported to the respondent and his solicitor.

The court further ordered that the respondent must inform the applicant's solicitor once he takes possession of Motor Vehicle 1 and when Motor Vehicle 2 is sold, with the proceeds to be divided equally between the parties. The applicant was required to make Motor Vehicle 1 available for collection by the respondent. The court scheduled a Conciliation Conference for 5 May 2025, to be attended by the parties and their lawyers, with specific document exchange and preparation requirements outlined. The court also noted that if any allegations of family violence were present, certain procedural restrictions would apply, and unrepresented parties could apply for representation through the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

Orders

Orders of the court

MLC 1775 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS TAUSEN

Applicant

AND:

MR KEMPER

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:

Leave to prosecute out of time

1. Pursuant to section 44(6) of the Family Law Act 1975 (Cth), the applicant wife, MS TAUSEN (‘the Wife’), be and is granted leave to file and prosecute her application dated 17 February 2025.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

Interim spousal maintenance

2. Within 7 days of receiving his pay each month, the respondent husband, MR KEMPER (‘the Husband’), pay the Wife’s rent by direct debit from his salary directly to the real estate agent managing the rental property wherein the Wife resides.

3. The Husband forthwith do all acts and things to reinstate and pay the Wife’s private health insurance premium by direct debit as and when due.

AND THE COURT ORDERS THAT:

4. Upon receipt of any amount of lump sum total permanent disability (‘TPD’) payment received by the Wife, the Husband and his solicitor be immediately informed of that circumstance by the Wife’s solicitor.

5. The Wife do all act and things to ensure that Motor Vehicle 1 (‘Motor Vehicle 1’) is made available for collection by the Husband at B Street, Suburb C, VIC on or before 4.00 pm on Saturday 8 March 2025.

6. The Husband forthwith take out a cover note to ensure that Motor Vehicle 1 is insured as soon as practical and, when he has done so, the Husband confirm same to the Wife’s solicitor by text message.

7. When the parties’ Motor Vehicle 2 is sold, the Husband inform the Wife’s solicitor by text message, and the proceeds of sale be divided equally between the Husband and the Wife.

Conciliation conference

8. The parties and any lawyers on the record shall personally attend a Conciliation Conference on Monday 5 May 2025 at 9.00 am at the Melbourne Registry before Judicial Registrar Schulberg.

9. The parties and any lawyers on the record shall follow any directions from the Registrar convening the conference in relation to attendance in person, by Microsoft Teams or by telephone.

10. Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the Applicant and Respondent must pay the Conciliation Conference fee in equal amounts no less than 14 days prior to the Conference.

11. At least 14 days prior to the conference date, each party must:

(a) ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;

(b) ensure that any private expert report that is relevant to the proceedings has been filed;

(c) provide to the Court by email to the relevant case manager at …@... and to the other party a single collated bundle of documents comprising:

(i) a Confidential Outline of Case (Dispute Resolution)

(ii) a detailed minute of Orders Sought;

(iii) details of any previous or current family violence orders;

(iv) a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);

(v) particulars of any financial resource;

(vi) a valuation or market appraisal of any real estate or other asset the value of which is in dispute;

(vii) statements for, and where applicable, valuations of any superannuation interest;

(viii) written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.

AND THE COURT NOTES THAT:

A. The Husband has told the Court this day that he intends to sell the parties’ Motor Vehicle 2 once he has taken possession of Motor Vehicle 1.

B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 1775 of 2025
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	28 February 2025
Catchwords:	FAMILY LAW – Interim spousal maintenance – Application for leave to file and prosecute application out of time – Where applicant de facto wife has significant history of mental ill health and hospitalisations – Where respondent de facto husband was paying maintenance on a voluntary basis for a substantial period after separation until recently – Hardship to applicant of not being granted leave to prosecute application established in circumstances where applicant deemed unable to adequately support herself without income tested benefit or pension – Leave granted to file out of time – Interim spousal maintenance ordered – Where applicant’s expenditure is reasonable – Where respondent is able to make small economies in expenditure – Respondent ordered to pay applicant’s rent directly to real estate agent – Respondent ordered to pay applicant’s health insurance in circumstances where she is highly dependent on it.
Legislation:	Family Law Act1975 (Cth) ss 44(5), 44(6), 90SF
Cases cited:	Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932
Division:	Division 2 Family Law
Number of paragraphs:	42
Date of hearing:	28 February 2025
Place:	Melbourne
Counsel for the Applicant:	Mr Hall
Solicitor for the Applicant:	Easton Legal
Solicitor for the Respondent:	Ms Palbas, Thelma Palbas & Associates

MLC 1775 of 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS TAUSEN Applicant
AND:	MR KEMPER Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	28 FEBRUARY 2025