Wife Seeks Spousal Maintenance
Holman & Bates [2022] FedCFamC1A 141 (8 September 2022)
Orders were made discharging an order for urgent spousal maintenance. The wife appeals to such orders. The Court, in adjudicating this dispute, assessed whether there was considerable uncertainty as to the husband’s capacity to meet an order for spousal maintenance.
Facts
Ms. Holman (“the wife”) seeks leave to appeal, and if granted, appeals against orders made by the Magistrates Court of Western Australia on 11 March 2022. Those orders discharged an earlier order requiring Mr. Bates (“the husband”) to pay the wife urgent interim spousal maintenance in the sum of $800 per week. The husband opposes the application for leave and the appeal. The parties commenced a relationship in 2013, married in 2015, and separated in December 2018, thereby concluding a relationship of something less than six years duration.
There were no children born into the relationship, although the wife has a now 17-year-old daughter from a previous relationship who lives with her, and the husband lives with his new partner and her child. The wife held significant equity (about $400,000) in a property she owned at Suburb A. She also partly owned (and still does) a business where she worked and received a weekly wage. During the relationship, the husband was employed as a tradesperson. The parties’ financial circumstances deteriorated during the relationship as a consequence of a decline in the property market, an increase in joint debts and mortgage drawdowns, and the Covid-19 pandemic.
In November 2021, the wife was diagnosed with a terminal illness. She has been undergoing palliative care which impacts on her ability to work. In January 2022, she filed an Initiating Application for property settlement which sought, inter alia, an urgent spousal maintenance order and interim orders for ongoing spousal maintenance. On 27 January 2022, the primary magistrate made a raft of interim orders which included an order for urgent spousal maintenance of $800 per week to the wife pending the interim hearing of the matter.
On 11 March 2022 his Honour, for ex tempore reasons then delivered, made two orders, namely discharging the earlier order for urgent spousal maintenance, and transferring the proceedings to the Family Court of Western Australia. These are the orders which the wife appeals to, although no ground nor argument addressed the transfer order.
Issue
Whether or not orders for spousal maintenance should be made.
Applicable law
Family Law Act 1975 (Cth) s 72 - provides that a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately.
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 - provides that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
Analysis
The wife asserts that the decision of the Learned Magistrate to not deal with the Wife's application for periodic spousal maintenance, in any way (noting the Learned Magistrate neither dismissed nor ordered any sum to be paid by the Husband), was against the evidence, and the weight of the evidence, and was wrong in law. Although the primary magistrate did not make a stand-alone order dismissing the wife’s interim application for periodic spousal maintenance, when the ex tempore reasons are read as a whole, it is evident his Honour intended to determine the wife’s application for interim spousal maintenance.
At the commencement of his reasons, the primary magistrate said that the issue for determination is whether the applicant has demonstrated a need for spousal maintenance and, if so, whether the respondent has the capacity to meet the spousal maintenance order. There can hence be no doubt that his Honour correctly understood the task before him, and at least initially conformed to the steps he had identified.
Central to the wife’s argument was an exhibit created by her that purported to demonstrate discounts that ought to be applied to expenses claimed by the husband in his financial statement. It was said that after those discounts were applied, the husband had a surplus income of $750 per week. However, the husband did not have an opportunity to dispute that document, except by way of his counsel’s submissions. In those submissions, there was a considerable traverse of individual amounts sought to be discounted, and a further assertion that the husband had not included in his financial statement the payment of his legal fees and repayment of a loan he had taken to pay previous legal fees.
Conclusion
The wife’s application for leave to appeal is dismissed. The Notice of Appeal filed on 8 April 2022 (as amended on 4 August 2022) be dismissed. The Notice of Contention filed on 17 May 2022 is dismissed. Within 28 days of the finalisation of proceedings between the parties in File No. PTW 5930 of 2021, the wife should pay the husband’s costs in the sum of $5,000.
