Tausen & Kemper
[2025] FedCFamC2F 309
•28 February 2025
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In the matter of Tausen and Kemper, an application came before me this day in the very recently issued proceedings of the applicant de facto wife, Ms Tausen (‘the Applicant’). The Applicant is aged 50, and the respondent de facto husband, Mr Kemper (‘the Respondent’), is aged 48. The parties commenced to cohabit in or around about 1999, and they have two children: Ms D, born in 2001, who is now 23 and living independently of the parties; and Mr E, who was born in 2007 and is aged 18, but completing the equivalent of secondary school and living with the Respondent.
APPLICATION TO PROCEED OUT OF TIME
It is common ground that the de facto relationship between the parties ended in May 2022. The Applicant issued proceedings seeking property alteration, or division, and spousal maintenance on 17 February 2025. Hence, the Applicant is about eight or nine months out of time. As a result of being out of time, the Applicant has sought the extension of time pursuant to Part V, Division 3 of the Family Law Act1975 (Cth) (‘the Act’) of which sections 44(5) and 44(6) provide as follows:
Section 44 Institution of proceedings
(5)Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a)the application is made within the period (the standard application period) of:
(i) 2 years after the end of the de facto relationship; or
(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b) both parties to the de facto relationship consent to the application.
…
(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
The Applicant’s case is that she would suffer hardship, and significant hardship, if leave were not granted and that, in any event, at the time of the end of the standard application period (that being two years after the end of the de facto relationship), the Applicant was in receipt of an income tested pension or benefit. The Respondent is in paid employment and (relative to the majority of the community) earns a significant income, but I regard that as a modest income, in the circumstances where he services a significant mortgage and provides for the child, Mr E, who lives with him at this time. The Applicant has an income solely from social security benefits that totals about $652 per week, with disability pension and rental assistance.
By agreement with the parties, it was determined that I should deal with the issue of whether time would be extended, under section 44(6), before hearing submissions in regard to the other aspects of the Applicant’s case.
It is important to note that the Respondent opposes any extension of time and opposes any property division or spousal maintenance orders. Though, as I understand it, in the alternative, if there is to be a property division, the Respondent seeks orders that would be just and equitable. The Applicant says that the property pool consists of equity in the former matrimonial home of, roughly, $405,000 (value of home, $640,000, less mortgage of $235,000), and the parties’ total superannuation of about $429,400 – with the Applicant’s superannuation being $35,173 and the Respondent’s superannuation being $394,399.
The dispute as to what would be step one of the orthodox four-step process of Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 (‘Keskin’), if leave were granted, is whether the current (almost three years after separation) value of superannuation should be used, or whether the value should reflect the date of separation. On the very rough parameters of the case, as put by the Applicant, the parties should be regarded as, over this long relationship, contributing roughly equally (50/50 or thereabouts), but that there should be a prospect of adjustment on account of section 90SF(4) factors of 5-10% in the Applicant’s favour, after taking into account the prospect that she may receive a total and permanent disability payment of $84,000 in the future. The Applicant thus seeks that the total property and superannuation should be divided in the region of 55-60% in her favour.
When pressed, the Respondent’s position was that contributions should be regarded as, roughly, 70/30 in his favour, and that there may be a section 75(2) adjustment in the Applicant’s favour of perhaps 5%. On the Respondent’s case, the assets and superannuation, if leave were granted (which is strongly opposed), should be divided in the order of 35/65 in his favour. The reason I have taken the trouble to recite those facts is because it is clear that, on either party’s contentions, there is a property pool of substance that may be divided.
I will now turn to the principles relating to a section 44(6) application.
I refer to the LexisNexis Australian Family Law Commentary on section 44(6), which includes the following, and which with respect, I adopt:
[s 44.17] Hearing of application for leave to institute proceedings
Full hearing of merits claim not required
The Full Court has often stressed that the court is not required to undertake a detailed hearing on the merits of the claim in respect of which leave is sought. The question is not whether the claim will succeed, but “The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim” [citations omitted].
Limits on evidence
It follows that the evidence relevant to the application for leave will be limited. In In the Marriage of Jacenko (1986) 11 Fam LR 341; (1986) FLC 91–776 , the Full Court said that the general principle is that the court proceeds on the evidence of the applicant, which should be accepted unless it is inherently unbelievable or contradictory, although oral evidence may have to be called and cross examination allowed however because of lack of clarity in the applicant's evidence: at Fam LR 343 per Nygh J, with whom Walsh and Fogarty JJ agreed. …
Applicant's evidence
The applicant should file evidence that supports a finding that failure to grant leave will result in hardship to a party (presumably the applicant) or a child or in a maintenance application that the applicant cannot support herself (or himself) without access to an income tested pension or benefit.
Hardship may be found when the applicant has a prima facie claim worth pursuing or one which has a real probability of success which would otherwise be lost: Sharp v Sharp (2011) 50 Fam LR 567; [2011] FamCAFC 150; BC201150413.
Accordingly, evidence about contribution matters and relevant s 75(2) considerations should be contained in the applicant’s affidavit. The applicant should explain the failure to file within the prescribed time period.
…
[44.18] General principles on application for leave under s 44(4) and (6)
Section 44 does not state what principles should guide the court on an application for leave, except that the court must be satisfied that hardship would be caused to a party or a child if leave were not granted: s 44(4) and (6). The Full Court has stated the general principles in slightly different ways, but it is submitted (RC, SO'R) that it is now well established that on an application for leave two broad questions arise:
(a)Whether hardship would be caused to a party or a child of the marriage if leave were not granted. If such hardship is not established, the application for leave must be dismissed.
(b)If the court is satisfied that hardship would be caused, it should proceed to consider whether leave should be granted. This is a discretionary matter, and the court may have regard to a number of factors, including whether the applicant has an adequate explanation for the delay in bringing the proceedings, and whether to grant leave would prejudice or impose hardship on the respondent, or other persons. Questions of degree arise at this stage. Thus it might be that an applicant establishes the necessary hardship to satisfy s 44(4), but the court declines to grant leave because, for example, the hardship to the applicant if leave were refused is outweighed by the hardship to the respondent if it were granted.
…
More than appreciable detriment
It is equally clear that hardship is not established by showing that the applicant would be marginally better off if leave were granted. It has been said that the applicant must show not merely an appreciable detriment but a “substantial detriment” [citations omitted].
Similarly, it has been said that the mere loss of a right to litigate is not hardship: the consequence of that loss is the relevant matter [citations omitted].
Loss of prospective property claim may be hardship
Whatever the applicant's final situation might be, the loss of a prospective substantial claim for property adjustment may constitute hardship [citations omitted].
Loss of prospective maintenance claim may be hardship
It seems that the court will always consider loss of a (substantial) prima facie claim for maintenance to be hardship. […]
…
Where no prima facie case
Even if the claim is large, it has been said that hardship will not be established if the whole of the applicant's case is inherently improbable, or demonstrably false, and has no reasonable probability of success. However, where a part of the claim has a reasonable chance of success, the refusal of leave may cause hardship. See In the Marriage of Hall (1979) 5 Fam LR 411 at 417; (1979) FLC 90-679 at 78,627–8.
An explanation of delay is one factor to take into account, and that the weight to be given to the explanation depends on the circumstances. But it is not the law that there must always be a satisfactory explanation for delay. A further explanation for delay may be that the applicant was content with voluntary arrangements, which had ceased. I refer again to the LexisNexis Australian Family Law Commentary on section 44(6):
Significance of explaining the delay
Some decisions have stated or implied that as a matter of law there must always be a satisfactory explanation of the delay: see especially In the Marriage of Kercher (1981) 7 Fam LR 216; (1981) FLC 90-040. This view is now discredited. The applicant's explanation for the delay, or the lack of it, is no more than one factor whose weight depends on all the circumstances. […]
…
Applicant content with voluntary arrangements
Applications are commonly brought upon the breakdown of voluntary financial arrangements which had previously been acceptable to the applicant. For example, the applicant may have failed to proceed because the respondent had paid maintenance, or allowed the applicant to remain in the matrimonial home. The applicant may not have thought about financial applications because there was no apparent need.
The courts have tended to regard this as an acceptable reason for the delay in bringing proceedings. […] In some cases, the court may say or imply that the respondent, having broken the arrangement or misled the applicant, can hardly complain at the applicant's decision to bring proceedings
I must take into account and balance the hardship, or prejudice, to the respondent of the application being granted. In this case, it is contended by the Applicant that the parties’ assets are, more or less, in the state as they were, after a long relationship (when the relationship ended in May 2022). The parties have the same superannuation funds, they have the same home, and the same mortgage.
Further, and in any event, whether or not there is an adequate explanation for the delay, and whether or not hardship would be caused, as can be seen from section 44(6) and the word ‘or’ at the end of paragraph 44(6)(a), an alternative basis for the extension of time is if, at the end of the standard application period, the applicant would have been unable to support himself or herself without an income tested pension or benefit. It is in those circumstances that the Applicant says that her significant mental ill health is an explanation for delay.
The Applicant’s ill health
Evidence that demonstrates mental ill health is the observations of Dr F in regard to a total and permanent disability claim:[1]
Unstable and debilitating mental health condition resulting in total unfitness for work now and in the future.
[1] Excerpt from exhibit ‘A2’.
Mental ill health is further demonstrated by the report of psychiatrist, Dr G, who opined, as at 28 November 2024 (again, in an assessment related to a total and permanent disability claim and not these proceedings) as follows:
[Ms Tausen] suffers from a severe mental illness […] with rapid mood swings and [mental illness symptoms]. She has been in and out of hospitals because she becomes out of control with suicidal ideations.
… to the diagnosis of ADHD [Ms Tausen]’s functioning was poor due to dysregulation and poor decision making.
With medication, [Ms Tausen]’s … management has improved but is still not well enough to perform in any future employment which needs consistency and …
Further to that, exhibit A1 demonstrates that the Applicant was an inpatient at a psychiatric hospital facility for treatment of her mental health on the following occasions from early 2023 to mid-2024:
•early 2023
•early 2023
•mid-2023
•mid-2023
•early 2024
•early 2024
•mid-2024
It is put that the Applicant’s demands for funds from the Respondent, during the period since separation (what are alleged to be an attempt to ‘blackmail’ the Respondent in regard to the care of their youngest child) demonstrates that, whether or not she had ill health, she was not incapable of doing anything and, hence, was able to consult a solicitor.
On the Respondent’s case, the Applicant’s trip (post separation) to Europe (alleged to be about four weeks) and then, not long after, a trip to Country H (alleged to be about two weeks) reinforce the point, and demonstrate that the alleged ill health is not an explanation for the delay. It is further put, by the Respondent (by exhibiting ‘MRK-1’ to his affidavit) that the Applicant only commenced receiving the disability support pension in or about June 2023, roughly 13 months after the separation and not six months after, as asserted by counsel for the Applicant.
But it is clear, from MRK-1, that, from June 2023 until at least September 2024, the Applicant was in receipt of the disability support pension.[2] It was not in dispute that the disability support pension recorded in the freedom of information documents and records obtained was an income-tested pension, benefit, or allowance. It is also common ground that, from separation until December 2024, that is, for a substantial period, the Respondent did meet substantial expenses on behalf of the Applicant, including rent and health insurance.
[2] The relevant time being May of 2024
Both parties rely upon that history of substantial expenditure. The Respondent says that demonstrates that he has supported the Applicant, post-separation, long enough, and it is time to move on, particularly in circumstances of his obligation to support Mr E, and the long hours required to earn the income that he does. On the other hand, it is put that the Applicant, receiving that assistance of rent and health insurance, was part of the explanation of why she did not move to bring an application sooner.
Balancing all of those factors, I am satisfied that there is not an entirely satisfactory explanation for delay but, nonetheless, a reasonable explanation for the delay. Whether or not there is, I am satisfied that if the time limit is not extended, the Applicant will suffer hardship, that being the loss of the opportunity to ventilate what, prima facie, is a significant claim on either party’s account.[3]
[3] I am satisfied that counsel for the Applicant, Mr Hall, has not advocated the range on a very best case scenario, but as one that he regarded as in the middle of the range outcome, so I am satisfied there would be hardship.
Balancing hardship
I then need to balance hardship between the Applicant and the Respondent. The Applicant would suffer hardship, and that is clear because, but for the right to bring this claim, she has the following. The possibility of a total and permanent disability claim, which may bring up to a maximum of $82,000, and she has a bicycle, and she has $38,000 of superannuation. She has recently been in possession of a motor car that she no longer drives as she does not cope with the general stress of maintaining a car and driving it. And, regardless of these proceedings, her counsel has announced she intends to make the car available for the Respondent to collect.
The hardship to the Respondent is the fact that he now has to face, out of time, the same claim that he would have had to face up until May 2024. But this is not hardship in the sense that he has changed his circumstances or gone on to live his life on the basis that there would be no claim by the Applicant. The Applicant’s communications to the Respondent, on my reading of them, made clear that she agitated for at least spousal maintenance from soon after the relationship. That is part of the opposition to leave being granted – that, in the circumstances where she was agitating for further funds and money from the Respondent, the Applicant demonstrated a capacity to contact lawyers and/or bring an application.
Balancing all of those matters, I am satisfied that this is an appropriate case where leave to apply, after the end of the standard period, should be granted, and because of the hardship the Applicant would otherwise suffer.
APPLICATION FOR INTERIM SPOUSAL MAINTENANCE
This matter is heard on the papers, and is a matter of, as far as I am concerned, hardworking people living modest and sensible lives, with one of them suffering the significant impact on her life of significant mental health difficulties.
Notwithstanding those difficulties, and by way of demonstrating the extent of the difficulties, I refer, in addition to the evidence of Dr G and Dr F, recited in the reasons above, and the hospitalisations that are in evidence. I also refer to the medical report of the team at J Clinic[4] which describes the many years of struggle with mental health difficulties that the Applicant has experienced.
[4] Annexed to the Applicant’s affidavit filed 17 February 2025 at ‘MST-1’.
In determining the Applicant’s application for spousal maintenance, I must consider section 90SF, which is as follows:
Section 90SF Matters to be taken into consideration in relation to maintenance
(1)In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a)only to the extent that the first - mentioned party is reasonably able to do so; and
(b)only if the second - mentioned party is unable to support himself or herself adequately whether:
(i)by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
…
(2)In applying this principle, the court must take into account only the matters referred to in subsection (3).
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); 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 de facto relationship 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 (4), 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) 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
(i)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 de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
…
(4)In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
The Applicant is only entitled to any periodic spousal maintenance if, in the words of section 90SF(1)(b), she is unable to support herself adequately whether: (ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or (iii) for any other adequate reason. I am satisfied that the Applicant is unable to support herself adequately because of the mental health difficulties that she grapples with. The fact that the Applicant, at the moment, appears to be grappling with her mental health difficulties quite well does not mean that she is able to obtain paid employment. She may, one day, be able to do that but not at this point.
The next principle is that the Respondent must maintain the Applicant only to the extent that he is reasonably able to do so. And that is taking into account the responsibilities to support himself, and the responsibilities to support any other person, which would include the parties’ 18-year-old son, Mr E, that lives with him. It is common ground that Mr E remains at the equivalent of secondary school, and there is no prospect, in the foreseeable future, of Mr E being able to support himself.
In terms of the Applicant’s reasonable needs, she was in rental accommodation at a lesser sum than what she has just moved in to. Her rental accommodation, previously, cost in the order of $1821 per month. She was unable to continue to pay that rental accommodation when, after giving a lot of notice, the Respondent ceased making the payment of her rent in December 2024, as he had been doing since soon after May 2022.
The Respondent had paid, always paid, and continued to pay rent and medical insurance up until the end of December 2024. Thereafter, with the assistance of borrowings from her solicitor, the Applicant was able to obtain alternative but similar accommodation – similar to the extent that it is a two-bedroom premises, albeit it is unit accommodation, and a property that may well need some repair. I am satisfied that they are, roughly, equivalent in standard of accommodation, and there is nothing extravagant or unreasonable about the Applicant taking up that rental option.
In the current circumstances of rental shortages and rising rents, I am satisfied that, with the history of having just been given a notice to vacate from the previous premises, it would have taken some skill to obtain that accommodation. I am satisfied that that accommodation is reasonable. I am also satisfied, in the circumstances of the Applicant’s medical circumstances, that she really needs private health insurance. She has depended on it for a long time. That insurance is currently cancelled because, the Applicant says, she didn’t have the money to pay it. Nonetheless, I am satisfied that her reasonable expenses include that reasonable rent, her private health expenses and the very modest expenses in her Part (N) expenditure (that is, food and day-to-day living expenses to a total of $490).
The Respondent deposes that his day-to-day living expenses for himself and Mr E, and, to a modest degree, for the parties’ eldest child (who supports herself, but has moved back home) is in the order of $1340 per week. I also note that, somehow, the Respondent has been, on average, but not every month, paying in the order of $2000 a month for legal fees which puts another significant financial pressure on him. I am satisfied that the Respondent’s claimed expenditure is reasonable. Doing the best I can by economies, he may be able to make some economy in his claimed expenditure, before legal expenses, of, at most, $200 per week and more likely less than that.
The Applicant has the prospect, but only the prospect, of receiving a total and permanent disability lump sum payment in the order of $82,000. The precariousness of the Applicant’s mental health means that it is the view of her generous instructing solicitors that arrangements would have to be made to safeguard those funds, if received, from any inclination to spend it other than very wisely.
I am satisfied that the Applicant’s reasonable expenses are in the order of her rent, of $521 per week, plus the day-to-day expenses, as set out in her Part (N), of $490 per week, which is $1011, plus her medical insurance, which brings the total to $1088 - $1089 per week. That is her reasonable expenses. The Respondent, I am satisfied, does not have the capacity to support himself and Mr E, with all the expenses that he has, and make that payment.
What is sought today, by the Applicant’s counsel, is a payment that is, effectively, the equivalent of about $715 per week or $37,128 per year. With some skill and passion, the solicitor for the Respondent almost had persuaded me that I needed to look at the actual income into the Applicant’s household, that would be counting all of the social security payments that she receives. However, I repeat section 90SF(4):
(4)In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
As such, I must disregard that income when assessing maintenance. I must take that pension into account when dividing property but, when assessing maintenance, I must disregard it.
On the claimed expenses, in a fairly carefully put together financial statement, the Respondent has an excess of income over expenditure of about $494 per week.[5] I am satisfied that I should regard him as having a net after tax income of about $1859 per week. I am satisfied that, with difficulty, the Respondent could make economies in his expenditure. For example, I am not satisfied that, on an interim hearing, it is necessary or reasonable, in all the circumstances, that I take into account clothing and shoes expenses of $170 a week, entertainment and hobbies of $100, and holidays of $100 per week, noting that that is for himself and Mr E. I am satisfied that, overall, he would be able to make some economies of something in the order of $100 to $200 per week.
[5] But not taking into account legal expenses paid.
That does not leave any fat or excess for rainy days or lumpy expenses. Hence, I am not satisfied that the roughly $694 per week should be regarded as his capacity to pay. I am satisfied that a reasonable capacity to pay should be regarded as in the order of $600 per week, which is about the current rental plus the private health insurance. The Respondent, through his solicitor, expresses that, if he is compelled by court order to pay, he would prefer to pay the rent directly, and prefer to pay the health insurance in the same fashion.
I am satisfied that, as an exception to the normal circumstance where he would be compelled to pay such an amount directly to the Applicant and it is a matter for her to spend those moneys, in the difficult circumstances of this case, that liberty and responsibility that she would otherwise have will not be applied. She will have the liberty to spend whatever social security she is entitled to receive, that I am not entitled to take into account, but I am satisfied that the Respondent should pay the rent directly, as it is due, and I am satisfied that it should be paid two days before it is due rather than on the day. So, I am satisfied the order should be that the Respondent will pay directly, by direct debit from his salary. He should make the next payment of rent directly to the relevant real estate agent, by direct debit to the real estate agent’s account, within seven days of receipt of his monthly income payment. That way the rent is paid a little in advance in each month. I am satisfied, at the same time as making that monthly payment of rent, he should attend to the monthly payment of the medical health insurance.
One of the matters that I take into account is that medical health insurance only ever goes up, and that might increase. Hence, that is part of what I have taken into account of treating him as, with difficulty, only having a (roughly) $600 per week excess of expenses capacity to pay. What that means is, if there is a modest rent increase or a modest private health expense increase, the Respondent will have to bear the burden of that expense. I note that these are interim orders. It will also be ordered that, upon receipt of any amount of lump sum total and permanent disability payment received by the Applicant, that the Respondent and his solicitor be immediately informed of that circumstance.
Having given leave to bring the property and maintenance proceedings, and both parties having already filed financial statements, it appears to me that there has been substantial financial disclosure of each other’s financial affairs already, and I would hope there is minimal further expense expended on exploring that. My inclination is that each party already knows more about the other’s expenditure on a weekly and monthly basis than they need to already, having examined bank statements and so on.
The ordinary process is that the matter is referred to a Judicial Registrar for the affixing of the equivalent of a mediation or financial conference for the matter to settle. In terms of the broad property range, it is unnecessary that I express any opinion, save that the range of outcomes expressed by counsel for the Applicant (without finding that they are correct) are closer to the ballpark than the rather hopeful percentages expressed by the Respondent. But I make no judgment on that, and there is a lot I do not know about the past, particularly in terms of the overall contribution position, when it is clear that the Respondent made his contributions whilst supporting, or in the context of, significant mental health difficulties suffered by the Applicant. On the other hand, the Applicant has made her contributions whilst suffering, at least at times, the difficulty of poor mental health, yet she has still made a homemaker and parent contribution for many years and I am not sure how that will all play out in the end. However, on this interim basis, they are the orders that I will make.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 19 March 2025
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