Ye & Cai (No 3) - [2022] FedCFamC1F 477

Federal Circuit and Family Court of Australia
(DIVISION 1)
Ye & Cai (No 3) [2022] FedCFamC1F 477

File number(s): CAC 1379 of 2021

Judgment of: AUSTIN J

Date of judgment: 21 June 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Where the husband seeks review of an order compelling him to pay the wife interim spousal maintenance – Where the wife failed to discharge the onus of proving her need for financial support – Where the husband’s capacity to pay maintenance need not be considered in the absence of the wife demonstrating the need for it – Application for interim spousal maintenance dismissed – Orders of the senior judicial registrar set aside.

Legislation:
Family Law Act 1975 (Cth) ss 72, 74, 75

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.07, 5.08)

Division: Division 1 First Instance

Number of paragraphs: 31

Date of hearing: 20–21 June 2022

Place: Newcastle (via video link)

Solicitor for the Applicant: Brigitte Smithies and Associates

The Respondent: Litigant in person
ORDERS

CAC 1379 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS YE

Applicant

AND:
MR CAI

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

21 June 2022

THE COURT ORDERS THAT:
1.Orders 1, 2 and 3 made on 8 March 2022 are discharged.
2.Orders 1 and 2 made on 3 May 2022 are discharged.
3.Otherwise:
(a)The application for interim spousal maintenance contained within the Initiating Application filed on 30 June 2021 is dismissed;
(b)The application for interim spousal maintenance contained within the Response filed on 13 August 2021 is dismissed;
(c)The Application for Review filed on 14 March 2022 is dismissed;
(d)The Application in a Proceeding filed on 17 March 2022 is dismissed;
(e)The Response to an Application in a Proceeding filed on 5 April 2022 is dismissed; and
(f)The Application for Review filed on 6 May 2022 is dismissed.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Ye & Cai is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:

By an Initiating Application filed on 30 June 2021, the wife sought an interim order compelling the husband to pay her spousal maintenance of $1,500 per fortnight. That application was entertained by a senior judicial…

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 Ye & Cai (No 3)

Details

AGLC: Ye & Cai (No 3) [2022] FedCFamC1F 477
Case: [2022] FedCFamC1F 477
Decision Date: 21 June 2022

CaseChat Overview and Summary

In the case of Ye & Cai (No 3), the husband sought a review of an order compelling him to pay interim spousal maintenance to his wife. The wife had applied for interim spousal maintenance pursuant to sections 72(1)(a) and 74(1) of the Family Law Act 1975, arguing that she was unable to support herself due to her primary care of the couple’s two young children and that the husband had the financial capacity to meet her needs. The husband opposed the application, contending that the wife had not proven her need for financial support and had not fully disclosed her assets. The legal issues before the court were whether the wife had discharged the onus of proving her need for financial support and, if so, whether the husband had the capacity to pay interim spousal maintenance.

The court found that the wife had failed to discharge the onus of proving her need for financial support. Although the wife's financial statement indicated that she had no income other than welfare benefits and child support payments, the husband challenged the accuracy of the wife's evidence regarding her assets. The wife's affidavit suggested that she had disposed of her proprietary interest in two properties without receiving any consideration, while the husband claimed that the proceeds from the sale of those properties were used to repay debt. The court found the husband’s evidence on this issue to be vague and possibly unreliable, but concluded that the wife's failure to demonstrate her need for financial support meant that the husband's capacity to pay maintenance need not be considered. Consequently, the wife's application for spousal maintenance was dismissed, and the orders of the senior judicial registrar were set aside.

The court dismissed all outstanding applications for interim financial relief, including the wife's initial application for spousal maintenance and subsequent applications for review and other interim financial relief. The court ordered that the orders made on 8 March 2022 and 3 May 2022 be discharged, and dismissed the wife's applications for spousal maintenance, review, and other interim financial relief. The form of the order is subject to entry in the court's records, and the reasons for judgment may be subject to review or variation in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

CAC 1379 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS YE

Applicant

AND:

MR CAI

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

21 June 2022

THE COURT ORDERS THAT:

1. Orders 1, 2 and 3 made on 8 March 2022 are discharged.

2. Orders 1 and 2 made on 3 May 2022 are discharged.

3. Otherwise:

(a) The application for interim spousal maintenance contained within the Initiating Application filed on 30 June 2021 is dismissed;

(b) The application for interim spousal maintenance contained within the Response filed on 13 August 2021 is dismissed;

(d) The Application in a Proceeding filed on 17 March 2022 is dismissed;

(e) The Response to an Application in a Proceeding filed on 5 April 2022 is dismissed; and

(f) The Application for Review filed on 6 May 2022 is dismissed.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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

The wife’s solicitor acknowledged that the second review application (covering Order 2 made on 3 May 2022) revived the first review application and so the spousal maintenance orders of both 8 March 2022 and 3 May 2022 were under review.Evidence As this is a hearing de novo, the parties were invited to nominate the evidence upon which they relied to prosecute and defend the underlying spousal maintenance application. The wife relied upon:(a)her financial statement filed on 1 December 2021;(b)her affidavit filed on 3 December 2021 (but only from [67] onwards); and(c)the affidavit of her mother filed on 12 January 2022. The husband relied upon:(a)his financial statement filed on 12 August 2021; and(b)his affidavit filed on 22 March 2022. The wife’s solicitor successfully took objection to the husband’s reliance on his affidavit filed on 16 June 2022, on the basis that it was late (r 5.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) and he was only entitled to rely upon one affidavit (5.08(1)). At the end of the hearing, the husband applied to re-open the evidence and tender some of his bank statements to try and prove the preservation of $10,000 in his bank account to meet certain visa requirements, but leave was refused over the wife’s objection.Legal Principles This is an application by the wife for interim spousal maintenance pursuant to ss 72(1)(a) and 74(1) of the Family Law Act 1975 (Cth) (“the Act”), they having married in 2017 and separated in 2021. The wife contended that, by reason of having the care and control of the parties’ two young children (now aged four and two years respectively) she is unable to support herself adequately. Further, she contended that by reference to factors prescribed within s 75(2) of the Act, principally the husband’s income earning capacity, he has the financial capacity to meet her need.The Wife’s Need If the wife’s financial statement is accepted at face value, she demonstrates the need for financial support. She has no income, save for welfare benefits which must be ignored (s 75(3)) and child support payments which are applied to support of the children. The husband did not contend the wife had any unexercised income earning capacity, given her continuing primary care of the two children. The wife deposed her only assets are the sum of about $13,000 saved in two bank accounts and a car of modest value. However, the husband contended the wife’s evidence as to her assets was false and incomplete. In summary, he alleged:(a)the wife’s evidence about disposing of her proprietary interest in two Country B properties (referred to as No. 201 and No. 401) for no consideration was false; and(b)she is in default of her disclosure obligations, because she still has not complied with orders for disclosure made 6 October 2021 (husband’s affidavit at [18] and pages 6–7) and so she has not satisfactorily proven she cannot support herself by resort to assets.

Decision

Reasons for decision

The wife alleged the husband also divested himself of income-producing properties (wife’s affidavit at [67]). The husband deposed he used the sale proceeds of those properties to repay debt to a third-party (husband’s financial statement at [59]). The husband’s evidence on that issue is unsatisfactorily vague and, as the wife suspects, he may be an unreliable witness. Nonetheless, his capacity to pay maintenance need not be considered until the wife has demonstrated need, which she has failed to do.Conclusion The wife’s application for spousal maintenance is dismissed and the orders of the senior judicial registrar are set aside. Any and all other outstanding applications for interim financial relief are dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	CAC 1379 of 2021
Judgment of:	AUSTIN J
Date of judgment:	21 June 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Where the husband seeks review of an order compelling him to pay the wife interim spousal maintenance – Where the wife failed to discharge the onus of proving her need for financial support – Where the husband’s capacity to pay maintenance need not be considered in the absence of the wife demonstrating the need for it – Application for interim spousal maintenance dismissed – Orders of the senior judicial registrar set aside.
Legislation:	Family Law Act 1975 (Cth) ss 72, 74, 75 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.07, 5.08)
Division:	Division 1 First Instance
Number of paragraphs:	31
Date of hearing:	20–21 June 2022
Place:	Newcastle (via video link)
Solicitor for the Applicant:	Brigitte Smithies and Associates
The Respondent:	Litigant in person

CAC 1379 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS YE Applicant
AND:	MR CAI Respondent

order made by:	AUSTIN J
DATE OF ORDER:	21 June 2022