Sad v Msd

 
FREE EXCERPT

IN THE FAMILY COURT AT NORTH SHORE

FAM-2010-004-000858

Under “The Family Proceedings Act 1980”

Between
SAD
Applicant
and
MSD
Respondent
Appearances:

M Headifen for the Applicant

A McLean for the Respondent

Application for an order for spousal maintenance and past maintenance — parties separated after being in a relationship for eight years — applicant had not worked since their child was born and sought maintenance for the two years it would take for her to retrain or set herself up in business — respondent claimed the parties had signed a s21 Property (Relationships) Act 1976 contracting out agreement in full and final settlement of all claims — whether spousal maintenance under s64 Family Proceedings Act 1980 (“FPA”) and past spousal maintenance under s63 FPA was appropriate.

Held: The s21 agreement precluded claims in respect of rights to property. It did not preclude a claim for spousal maintenance.

Under s64A FPA (spouses must assume responsibility for own needs in a reasonable time) there was a presumption that Mrs D had to assume responsibility within a reasonable period of time for becoming self-sufficient. There was a liability on Mr D to maintain Mrs D only if it was unreasonable for Mrs D to do without that maintenance and it was reasonable for Mr D to pay it.

Matters to be considered were set out in s64A(3) FPA. The duration of the marriage was neither short nor particularly long and, with the ages of the parties, had little impact on the issue of liability to maintain. The division of functions within the marriage were such that Mrs D had been out of the workforce for some time and her abilities to commence working had been affected by her responsibilities in caring for P. Mrs D was unlikely to be able to earn anything close to what Mr D earned. Given these factors, it was unreasonable to require Mrs D to do without maintenance and given Mr D's financial circumstances, it was reasonable to require him to pay maintenance.

Mrs D's receipt of the DPB was disregarded in assessing quantum under s65 FPA (assessment of payable maintenance). The policy reasons behind the enactment of s84A made it clear that if a person was liable to maintain another because of the application of s63, s64, and s64A of the Family Proceedings Act, then that liability should not be limited or removed because of tax payer funding necessitated by the inability of the beneficiary to support herself. It could never have been intended that a liable person should have a lesser obligation because of tax payer funding on a discretionary basis.

Mr D had the ability to contribute towards Mrs D's support at the rate of $420 per week and on the balance of probabilities it was reasonable to require him to do so. It was unreasonable to require it for an extended amount of time and the $420 should only be payable for twelve months and then reduced to $200 a week for a further twelve months. The criteria for past maintenance were set out in s63 FPA and whether or not to order it was an exercise of unfettered discretion. No order for past maintenance was appropriate as a generous settlement had been made in favour of Mrs D in the s21 agreement.

Order for spousal maintenance.

Orders
  • (i) The Respondent is to pay to the Applicant spousal maintenance in the sum of $420 per week, the first payment 11 February 2011. As from 11 February 2012 the amount payable by the Respondent to the Applicant for spousal maintenance is reduced $200 per week.

  • (ii) The Respondent's liability to maintain the Applicant will cease on 11 February 2013.

  • (iii) There is no order for past maintenance.

RESERVED JUDGMENT OF Judge L J Ryan

[Spousal Maintenance]

1

The Applicant seeks an order for spousal maintenance coupled with past maintenance. She and the Respondent commenced living together in a de facto relationship in September 2000, they married on 22 March 2002, they had their child P in July 2004, separated in October 2008 and their marriage was dissolved on 2 December 2010. As from October last year they have shared the care of P on a week about basis.

2

The Applicant is not working and has not done so since P was born. She seeks maintenance for two years which she says is the period of time it will take for her to either retrain or alternatively set herself up as a curtain maker, a skill that she deployed before she ceased work and that she undertakes on a casual basis currently. Presently she is supported by virtue of a Domestic Purpose Benefit.

3

The Respondent is a sales manager and earns approximately $212,000 per annum, part of which is a base salary of $130,000 with the balance made up from monthly commissions.

4

His main criticism of the application is that the Applicant has been living apart from him now for over two years and she has done absolutely nothing to move on to put herself in the situation where she can support herself. He says she has excellent skills in her area of expertise and there is absolutely no reason why she should not have been working even part time to contribute towards her own support.

5

The application for spousal maintenance needs to be considered under the provisions of s 64 given that the parties' marriage has been dissolved. Section 64 provides:

Maintenance after marriage [[or civil union]] dissolved or de facto relationship ends

(1) Subject to section 64A, after the dissolution of a marriage [[or civil union]] or, in the case of a de facto relationship, after the de facto partners cease to live together, each spouse, [[civil union partner,]] or de facto partner is liable to maintain the other spouse[[, civil union partner,]] or de facto partner to the extent that such maintenance is necessary to meet the reasonable needs of the other spouse[[, civil union partner,]] or de facto partner, where the other spouse[[, civil union partner,]] or de facto partner cannot practicably meet the whole or any part of those needs because of any 1 or more of the circumstances specified in subsection (2).

(2) The circumstances referred to in subsection (1) are as follows:

  • (a) the ability of the spouses[[, civil union partners,]] or de facto partners to become self-supporting, having regard to—

    • (i) the effects of the division of functions within the marriage [[or civil union]] or de facto relationship while the spouses[[, civil union partners,]] or de facto partners lived together:

    • (ii) the likely earning capacity of each spouse[[, civil union partner,]] or de facto partner:

    • (iii) any other relevant circumstances:

  • (b) the responsibilities of each spouse[[, civil union partner,]] or de facto partner for the ongoing daily care of any minor or dependent children of the marriage [[or civil union]] or (as the case requires) any minor or dependent children of the de facto relationship after the dissolution of the marriage [[or civil union]] or (as the case requires) the de facto partners ceased to live together:

  • (c) the standard of living of the spouses[[, civil union partners,]] or de facto partners while they lived together:

  • (d) the undertaking by a spouse[[, civil union partner,]] or de facto partner of a reasonable period of education or training designed to increase the earning capacity of that spouse[[, civil union partner,]] or de facto partner or to reduce or eliminate the need of that spouse[[, civil union partner,]] or de facto partner for maintenance from the other spouse[[, civil union partner,]] or de facto partner if it would be unfair, in all the circumstances, for the reasonable needs of the spouse[[, civil union partner,]] or de facto partner undertaking that education or training to be met immediately by that spouse[[, civil union partner,]] or de facto partner—

    • (i) because of the effects of any of the matters set out in paragraphs (a)(i) and (b) on the potential earning capacity of that spouse[[, civil union partner,]] or de facto partner; or

    • (ii) because that spouse[[, civil union partner,]] or de facto partner has previously maintained or contributed to the maintenance of the other spouse[[, civil union partner,]] or de facto partner during a period of education or training.

(3) For the purposes of subsection (2)(a)(i), if the marriage [[or civil union]] was immediately preceded by a de facto relationship between the [[spouses or civil union partners]], the effects of the division of functions within the marriage [[or civil union]] include the effects of the division of functions within that de facto relationship.

(4) Except as provided in this section and section 64A,—

  • (a) neither party to a marriage [[or civil union]] is liable to maintain the other party after the dissolution of the marriage [[or civil union]]:

  • (b) neither party to a de facto relationship is liable to maintain the other de facto partner after the de facto partners cease to live together.]

6

Section 64(1) refers to s 64A which provides:

Spouses[[, civil union partners,]] or de facto partners must assume responsibility for own needs...

To continue reading

REQUEST YOUR TRIAL