WILKES & BOLTON

Case [2018] FamCA 309


FAMILY COURT OF AUSTRALIA

WILKES & BOLTON [2018] FamCA 309

FAMILY LAW – PROPERTY – Exclusive Occupancy – where the wife resides in Queensland and the Melbourne home is unoccupied save for occasions when she comes to Melbourne to visit an ill friend – where the husband is living with his parents and is unemployed – where there is no inconvenience to the wife having regard to her financial position for her to be able to pay for temporary accommodation when in Melbourne – consideration of the distinction between the alteration of property interests and the right to use property – where the husband should have exclusive occupancy of the property until further order.

FAMILY LAW – SPOUSAL MAINTENANCE – where the husband has traditionally been at home and has not worked for many years – where the husband is now 51 years of age – where he seeks spousal maintenance in anticipation of retraining to enter the workforce – where the wife maintains that the husband has not made efforts to obtain employment – where the court accepts that the husband’s position of not having worked and requiring retraining is unchallenged – where spousal maintenance should be ordered.

FAMILY LAW – SPOUSAL MAINTENANCE – QUANTUM – where the wife earns $10,000 per week and says it has expenses of just over half that sum as a medical practitioner running clinics in Queensland – where the husband is unemployed and has been so for a number of years – where the husband is living with his family – where the husband anticipates he would be spending $815 per week if that money was available to him – where the wife wanted the court to make any order limited to basis expenses – where it is not appropriate for the matter to be approached in that way – where the court makes an order for the quantum sought by the husband on the basis that it is reasonable.

Family Law Act 1975 (Cth)
Higgins & Higgins [2018] FamCA 243
Mullane v Mullane [1983] HCA 4; (1983) 158 CLR 436
Redman & Redman [1987] FamCA 2; (1987) FLC 91-805; (1987) 11 Fam LR 411
APPLICANT: Mr Wilkes
RESPONDENT: Ms Bolton
FILE NUMBER: MLC 10766 of 2017
DATE DELIVERED: 10 May 2018
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Cronin J
HEARING DATE: 9, 10 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT

SOLICITOR FOR THE APPLICANT:

Ms Dellidis

Stephen Farmer & Associates

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE APPLICANT

Ms Colla

Goldstone Family Lawyers

Orders

  1. By 4.00pm on Friday 18 May 2018, the wife provide the husband with all things necessary to enable him to have sole occupancy of B Street, Suburb C, until further order.

  2. That the wife pay maintenance to the husband of $815 per week until further order.

  3. That the wife also pay as maintenance for the husband the following payments in respect of the German motor car:

    (a)       The lease payments as they fall due;

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Details
AGLC
WILKES & BOLTON [2018] FamCA 309
Case
[2018] FamCA 309
Decision Date

CaseChat Overview and Summary

In the matter of WILKES & BOLTON, the Federal Circuit Court of Australia considered applications concerning property and spousal maintenance. The dispute involved a wife residing in Queensland and a husband who was unemployed and living with his parents. The court was asked to determine issues relating to the exclusive occupancy of a Melbourne home and the quantum of spousal maintenance.

The court was required to determine whether the husband should be granted exclusive occupancy of the Melbourne property, considering the wife's financial position and the lack of inconvenience to her if she were to pay for temporary accommodation when visiting Melbourne. Furthermore, the court had to assess the husband's claim for spousal maintenance, particularly in light of his long-term unemployment and anticipated need for retraining, and the wife's assertion that he had not made sufficient efforts to obtain employment. Finally, the court needed to determine the appropriate quantum of spousal maintenance, balancing the husband's anticipated weekly expenses against the wife's substantial income.

Regarding exclusive occupancy, the court distinguished between the alteration of property interests and the right to use property, ultimately ordering that the husband should have exclusive occupancy of the Melbourne home until further order. On the issue of spousal maintenance, the court accepted the husband's position regarding his unemployment and need for retraining as unchallenged and ordered that spousal maintenance should be paid. The court found that it was not appropriate to limit the maintenance order to basic expenses and ordered the quantum sought by the husband, deeming it reasonable given his circumstances and the wife's income.

The court ordered that the wife provide the husband with the means to have sole occupancy of the Melbourne property until further order. The wife was also ordered to pay maintenance to the husband of $815 per week until further order, along with payments for the lease, registration, and insurance of a German motor car. Other applications were otherwise dismissed.

Orders

Orders of the court

1.

By 4.00pm on Friday 18 May 2018, the wife provide the husband with all things necessary to enable him to have sole occupancy of B Street, Suburb C, until further order.

2.

That the wife pay maintenance to the husband of $815 per week until further order.

3.

That the wife also pay as maintenance for the husband the following payments in respect of the German motor car:

(a) The lease payments as they fall due;

(b) The registration of the vehicle; and

(c) The insurance on the vehicle.

4.

Should any party seek costs arising out of these interim proceedings, that application shall be in the form of a written submission to be filed and served by no later than 4.00pm on 24 May 2018 and any reply thereto be filed and served by 4.00pm on 31 May 2018 after which, any such determination shall be considered and dealt with in chambers.

5.

That the application in a case filed by the husband on 6 April 2018 and the wife’s response thereto filed 8 May 2018 are otherwise 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

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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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