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Jacky Campbell, March 2016

High Court to consider spousal maintenance

In a rare foray into the Family Law Act 1975, and an even rarer foray into the entitlements of parties to an order for spousal maintenance and particularly interim spousal maintenance, the High Court has granted special leave to the wife to appeal (Hall v Hall [2016] HCA Trans 23) against a decision of the Full Court of the Family Court.

The husband had been ordered by Dawe J to pay interim spousal maintenance to the wife. Dawe J later dismissed the husband’s application to discharge this order. The husband appealed to the Full Court of the Family Court inter alia against both the interim order for maintenance and the dismissal of his application for discharge of the maintenance order.

Interim maintenance order

Dawe J ordered in Hall & Hall [2013] FamCA 975 that the husband pay maintenance to the wife of $10,833 per month, together with school fees and related expenses for the children. He was also paying the mortgage, rates, taxes and utilities on the former matrimonial home. His total payments for the wife and children were $28,000 per month.

At the time of the hearing in December 2013 when the interim maintenance order was made, the parties had only been separated since September 2013. The wife’s application for interim maintenance was for urgent spousal maintenance under s 77 Family Law Act 1975, which has a lower threshold than the usual test for spousal maintenance:

“Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.”

The usual test for spousal maintenance is in s 72(1) which provides:

“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 whether:

(a)   by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b)   by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c)   for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).”

The wife’s father had died in 2009, but probate had not been granted. The wife did not produce a copy of her father’s Will and she said she did not know the particulars of her late father’s estate. Dawe J said (at paras 14-15):

“Presently, therefore, the wife may be entitled to an asset or financial resource or income that is not known. However, it appears that it is not currently an asset which the Court can take into account as a basis upon which to offset the wife’s claim to be presently unable to support herself adequately.

Similarly, the unknown value of the wife’s shareholding in her family’s businesses at this interim stage does not form a sufficient basis upon which to offset the wife’s interim claim.”

The values of the husband’s extensive business interests and real estate were also unknown. He did not deny that his income was $4 million per annum, although he claimed a taxable income of $80,340. The wife had a limited income.

Application to discharge maintenance order

The husband’s applications to discharge the maintenance order and to discharge certain injunctions against him were heard in March 2014 by Dawe J and reported in Hall & Hall [2014] FamCA 406. His applications were on the grounds that:

  • There was information to show that the wife had received, or would receive, shares from her late father’s estate of the approximate value of $7.2 million and she was therefore able to support herself.
  • The husband had recent information from the ATO which cautioned about him continuing to draw from the loan accounts against the various commercial entities, rather than disclose a greater taxable income.

The values of the husband’s property interests were still unresolved and, in relation to the wife’s interest in her deceased father’s estate, there remained considerable dispute about what interest, if any, the wife had in her late father’s estate.

Dawe J considered that the maintenance order should stand, and noted (at para 51):

“If the husband is successful in his appeal and the order for spouse maintenance is set aside an appropriate adjustment will be capable of being made on final determination of the property settlement proceedings.”

This statement was consistent with a similar statement Dawe J made in her reasons when she made the interim maintenance order. She dismissed the husband’s applications.

Appeals to the Full Court of the Family Court

In Hall & Hall [2014] FamCA 154, Thackray, Strickland and Aldridge JJ dismissed the husband’s appeal against the interim maintenance order but allowed the appeal against his application for the discharge of the interim maintenance order.

The Full Court was not prepared to draw the inferences that the husband sought in relation to the interim maintenance proceedings, based on the wife’s failure to disclose her “assets” and her failure to call evidence as to the value of her shares and her interest in the estate of her late father. The husband argued that Dawe J should have inferred that the disclosure of those “assets” and the evidence of value “would not have supported her case that she could not support herself adequately”. The Full Court considered that the urgent nature of the application and the short time between separation and the hearing affected whether those inferences could properly be drawn.

However, the Full Court was prepared to draw inferences in the other appeal and discharged the order for interim spousal maintenance on the grounds that:

  1. Although Dawe J recognised that there was an application before her to discharge the spousal maintenance order, and there was new evidence in relation to the wife’s shares, she failed to consider, and indeed make any finding as to whether there was sufficient new evidence before her to discharge the interim spousal maintenance order.
  2. There was evidence before the court by that time that the wife was able to support herself adequately. There was an expression of wish in her late father’s will that she should receive from the V Group an annual payment of $150,000, net of income tax, from the date of his death until she received payment from the V Group of an amount of $16.5 million.

The Full Court found in relation to the second of these grounds (at paras 151-153):

“The evidence relied on is … that in the Will of the wife’s late father he expressed the wish that V Group provide the wife with $150,000 per annum, net of income tax. To repeat, there is no evidence that the wife has requested this payment from her brothers, who it is common ground control V Group, or in particular, that any request that she has made for her father’s wish to be carried out has been rejected. Indeed … the letter from the wife’s brother … states that “[a]ny voluntary payment by [V] Group to [her] is entirely a matter for [V] Group and its Directors”. Importantly, there is no suggestion here that there would be an objection by this brother to such a voluntary payment.

The inference from the evidence is that, if requested, the wife would receive that benefit, and we make that finding.

To also repeat, the evidence from where that inference can be made is that the wife has a good relationship with her brothers, it is a wish expressed in the Will of their late father and the brothers provide the wife with late models of luxury motor vehicles, possibly through the V Group (although that is unclear on the evidence).”

Application for leave to appeal to the High Court

The High Court granted leave to the wife to appeal, despite Dawe J’s orders having been made in interim or interlocutory proceedings. When the High Court queried the utility of the appeal, the wife argued that the matter had not finally been set down for trial and a distinction had to be drawn between interlocutory matters going to practice and procedure and ones which determined substantive rights, as in this case. There was also an argument as to whether or not the wife was able to make a fresh application for interim spousal maintenance or was limited to only making a prospective application. If she was required to make a fresh application, the wife argued that maintenance could not be granted to her retrospectively to the date when the original interim order was made.

The crucial point before the High Court was whether an inference under Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298 could have been drawn in circumstances where the wife had not provided evidence to the Court. The inference drawn by the Full Court was that the wife would receive the money if she asked for it. However, the Full Court said that she did not have an entitlement as it was only a voluntary payment, and did not characterise it as a financial resource either.

Part of the wife’s case before the High Court was that there was no evidence before the Family Court as to whether she was prepared to ask for the money or whether, if she asked for the money, she would receive it. The wife also contended that the Full Court had shifted the statutory responsibility of the husband to support his wife under s 72 Family Law Act and imposed that responsibility on the wife’s brothers.

The husband contended that the interim maintenance order must be discharged in circumstances where the wife had not “chased up” her assets and had not brought forward evidence that she had done so. He also argued that the wife was content for his application to discharge the maintenance order to proceed on the basis of the trial Judge knowing that the wife had made no request for her payment and that the brothers had not taken a position one way or the other, even though she and her brothers knew that the terms of the Will were before the Court. The wife had run her case on the basis that she was prepared to let the Court draw inferences in a context where she had not provided information to the Court about her entitlements.

The husband argued that the wife now wanted an opportunity to carry out certain acts which might constitute evidence, but he said it was too late for her to do that. She had the opportunity to give that evidence beforehand and had chosen not to do so.

The High Court Appeal

It appears that in the appeal the High Court will have the opportunity to consider such matters as:

  • Procedural fairness, including whether or not the wife had the opportunity to meet the assertion before the trial judge that she could receive $150,000 per annum from her father’s estate;
  • When can inferences be drawn in accordance with Jones v Dunkel?
  • Was the right of the wife to ask for $150,000 per annum from her father’s estate a financial resource?
  • Could the wife demonstrate that she could not support herself when she might be able to be supported from her father’s estate?

Maintenance orders are not made frequently in the Family Law Courts. They are probably under-utilised, so it is possible that the High Court’s consideration of maintenance will have limited impact.

If, however, the High Court uses the opportunity – as it did in Stanford & Stanford (2012) FLC 93-518 – to make broader statements of principle, the impact could be far-reaching. The meaning of “financial resource” and the circumstances in which inferences can be drawn are two aspects of the appeal which have the potential to significantly affect other aspects of family law.

 

 

©  Copyright – CCH and Jacqueline Campbell.  This paper uses some material written by the author for publication in CCH Australian Family Law and Practice.  The material is used with the kind permission of CCH.

Jacky Campbell

Partner

University qualifications

Master of Laws, Monash University

Bachelor of Laws, Monash University

Bachelor of Arts, Monash University

Graduate Diploma of Professional Writing, Deakin University

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Email Jacky Campbell
jcampbell@fortefamilylawyers.com.au

Connect on LinkedIn

Publications
To read Jacky Campbell’s articles and papers click here.

In 2020, Jacky was recognised as a leading family lawyer in Melbourne by Doyle’s Guide to the Australian Legal Market as well as one of Melbourne’s leading family lawyers in High-value and Complex Property matters, and a recommended lawyer in parenting matters. Jacky was also a recommended lawyer in the Doyle’s leading family and divorce lawyers in Australia. Jacky writes extensively on complex aspects of family law and her up-to-date knowledge means that she is able to provide accurate information about the law. She combines this with offering strategic advice to clients and guidance as to the best approach to take in their particular circumstances.

Jacky wrote her Masters thesis on the relationship of bankruptcy and family law. She continues to have a special interest in matters involving bankruptcy, insolvency, liquidation and receivership.

Jacky received the Law Institute of Victoria Rogers Legal Writing Award 2004—for the article “Splitting the Super…and Selling the Home”. She is experienced with complex superannuation interests such as defined benefit funds and self managed superannuation funds.

Jacky is the consultant editor of Wolters Kluwer/CCH Australian Family Law and Practice and contributing author to Wolters Kluwer/CCH Australian Family Law and Practice to the Property, Spousal Maintenance, Financial Agreements, Maintenance Agreements, Procedure and Precedents tabs. She writes several chapters of the Wolters/Kluwer CCH Australian Master Family Law Guide, and is the author of the family law chapters in the Thomson-Reuters Australian Financial Planning Handbook and in the CCH Australian Master Superannuation Guide.

Jacky is a Fellow of the International Academy of Family Lawyers, a board member of the Asia Pacific Chapter of that Academy, and an Associate of the American Bar Association. She acts for many clients who are overseas or where there is an international element such as overseas assets and international child abduction under the Hague Convention. She is also experienced in Australian and overseas surrogacy arrangements and in disputes about the role of a sperm donor. She is a member of the Maintenance and Property Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Jacky is keen to assist clients to resolve matters before trial through alternative dispute resolution processes including mediation. She is a trained arbitrator and is an arbitrator with The Alternative Courtroom.

Wendy Kayler-Thomson

PARTNER

University qualifications

Master of Laws, Monash University

Bachelor of Laws, University of Melbourne

Bachelor of Commerce, University of Melbourne

Other qualifications
Accredited Family Law Specialist, Law Institute of Victoria

Email Wendy Kayler-Thomson
wkaylerthomson@fortefamilylawyers.com.au

Connect on LinkedIn

Wendy Kayler-Thomson is a partner of Forte Family Lawyers and has practised as a lawyer specialising in family law for more than 25 years. Wendy is recognised as one of Melbourne’s leading family lawyers in Doyle’s 2020 Guide to the Australian Legal Market.

Wendy is the Immediate Past Chair of the Family Law Section of the Law Council of Australia, the peak body for Australian family lawyers, and has been a member of the Executive of the Family Law Section for more than 10 years. The Family Law Section is regularly consulted by the Federal government and the Courts about changes to family law and court procedures. As a result, Wendy is able to offer her clients the most up to date advice on family law and strategies to take advantage of future changes.

Wendy’s time as Chair of the Family Law Section (from 2016 to 2018) coincided with a period of great controversy and unprecedented attention on the reform of family law and the family law system. This included the Victorian Royal Commission into family violence, the Federal Parliamentary enquiry into the family law system and family violence, the Australian Law Reform Commission’s Family Law Review and the Federal Government’s proposal to restructure the Family Court and Federal Circuit Court.

Wendy was a member of the Advisory Committee to the Australian Law Reform Commission’s Family Law Review, the most comprehensive review of family law and the family law sector in 40 years.

Wendy was also a member of the Advisory Committee to the Law Council of Australia’s 2018 Justice Project, chaired by former High Court of Australia Chief Justice, the Hon. Robert French. The Justice Project is one of the most comprehensive, national reviews into the state of access to justice in Australia in the past 40 years.

Wendy develops close and trusted relationships with her clients and the wide network of professionals that refer her work. Wendy’s approach is tailored to each individual client’s needs, recognising that for most people, the breakdown of a relationship is one of their most stressful and challenging experiences. Wendy brings a high attention to detail, strategic advice and a depth of expert knowledge about family law. Wendy has a commercial background and has acted for many clients with complex financial arrangements. She works closely with her clients’ accountants and other professional advisors to ensure that all the complexities of those arrangements, including tax impacts and restructuring, are dealt with as part of any settlement.

Wendy has undertaken extensive training in a wide range of social sciences that impact on families and their children, including family and domestic violence, parental alienation, personality disorders, drug and alcohol addiction and high conflict. Wendy’s clients benefit from her knowledge of the most up to date approaches by child psychologists and other experts to managing the post-separation care arrangements of children. Wendy has particular expertise in cases where one parent wants to relocate with the children interstate or overseas.

Wendy is also a member of the Executive Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, the Association of Family and Conciliation Courts, the Australian Institute of Family Law Arbitrators and Mediators and Victorian Women Lawyers.

Jemma Mackenzie

Senior Associate

University qualifications

Bachelor of Laws (Hons) Monash University
Bachelor of Arts (Hons) Monash University

Email Jemma Mackenzie
jmackenzie@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Connect on LinkedIn

Jemma is a Senior Associate at Forte Family Lawyers. She has worked predominantly in family law since being admitted to legal practice in December 2009.

Jemma obtained Specialist Accreditation as a Family Lawyer from the Law Institute of Victoria in 2015. Accreditation recognises the high level of knowledge and practical skills Jemma brings to each family law matter.

Jemma is mindful that the breakdown of a marriage or de facto relationship can be a stressful and often overwhelming experience for clients. She works with her clients to identify appropriate pathways for resolving both parenting and property matters.

Jemma prides herself on her ability to effectively communicate what can be complex legal principles and to provide realistic, up to date and accurate legal advice at each stage of a matter.

Jemma has experience in a wide variety of family law matters including division of property, maintenance (including urgent applications), Financial Agreements (including Agreements made prior to marriage), care and living arrangements for children, child support and family violence – including Intervention Order proceedings.

Prior to joining Forte Family Lawyers, Jemma worked in a Bayside family law firm and a boutique firm in Melbourne’s eastern suburbs. She has conducted litigation in both the Family Court of Australia and Federal Circuit Court in Melbourne and interstate.

In addition to her daily work with clients, Jemma has made presentations to financial advisors and medico-legal professionals about the family law system in Australia and what clients should know about family law prior to separating.

Jemma is a member of Victorian Women Lawyers, the Family Law Section of the Law Council of Australia and the Family Law Section of the Law Institute of Victoria.

Kristy Haranas

Senior Associate

University qualifications

Bachelor of Laws, James Cook University

Email Kristy Haranas
kharanas@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Connect on LinkedIn

Kristy is a Senior Associate at Forte Family Lawyers. Kristy is an Accredited Family Law Specialist as recognised by the Law Institute of Victoria. Accredited Specialists are required to maintain a high degree of continuing professional development to ensure their advice is based on the most current legal principles and to the highest possible standard. Kristy was recognised in the 2020 edition of Doyles Guide as a Family Law Rising Star.

Kristy has undertaken further tertiary study in the area of family law and has a Masters of Applied Law (Family Law) from the College of Law.

Prior to joining the firm, Kristy worked in a range of practice areas including several years in family law in Queensland. Kristy also worked a lawyer for the Australian Securities and Investments Commission on large-scale financial investigations. During her time at AISC Kristy gained valuable commercial experience and developed a high level of attention to detail which she now applies to her work in family law financial cases.

Kristy has a wide range of experience in different areas of family law including parenting issues, property settlements (including complex matters with multifaceted trust/corporate structures), financial agreements, child support and family violence cases.

Kristy prides herself on building strong relationships with clients from the outset. Kristy recognises that for most people, the breakdown of a relationship can result in stress, conflict and confusion. As a result, Kristy ensures that clients receive not only strategic and commercially focused legal advice, but empathy and compassion. Kristy has strong communication skills which she uses to confidently guide clients through what can sometimes feel like a complicated legal system.

Kristy is a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria which provides her with valuable insight into recent developments in the Family Law Courts. Kristy is also a member of the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Matthew Beckmans

Senior Associate

University qualifications

Bachelor of Laws, University of Western Sydney

Email Matthew Beckmans
mbeckmans@fortefamilylawyers.com.au

Connect on LinkedIn

Matthew commenced his legal career practising in a medium-sized rural law firm. Matthew is able to draw on his broad experiences over a number of practice areas, prior to practising exclusively in family law, to offer clients a well-rounded approach to tactically resolve complex legal issues.

Matthew has developed a special interest in complex disputes involving companies and trusts, insolvency and bankruptcy, taxation, and international/domestic relocation.  He also has a particular expertise in child support.

Matthew is aware and mindful of the financial challenges and restraints when attempting to resolve family law disputes, and sets out to achieve negotiated and cost effective outcomes which avoid court where possible. Matthew recognises the emotional issues attached to the breakdown of a relationship, and draws on his strong communication skills in demystifying the family law process, and to identify and explain possible options for resolution in a concise manner.

Matthew was a member of the steering committee of the Riverina Family Law Pathways Network, secretary of the South West Slopes Law Society, and a mock trial magistrate for the Law Society of New South Wales.

Prior to practising law, Matthew was rookie listed by the Sydney Swans, where he enjoyed a brief career.  He now plays for the Monash Blues in the VAFA.

Matthew is a member of the Family Law Sections of the Law Council of Australia and the Law Institute of Victoria.  He is on the Court Practice Committee of the Family Law Section of the Law Institute of Victoria.

Vinh Nguyen

Associate

University qualifications

Bachelor of Laws, Deakin University

Bachelor of Commerce, Deakin University

Email Vinh Nguyen
vnguyen@fortefamilylawyers.com.au

Connect on LinkedIn

Vinh first worked at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2017. He joined Forte Family Lawyers as a lawyer after his admission into legal practice in October 2017 and has, since then, worked solely in family law.

Prior to his admission as a lawyer, Vinh worked as a paralegal in a community legal centre and in a property and commercial law firm, where he gained valuable experience in property transactions.

Vinh is a member of the Family Law Section of the Law Council of Australia, the Law Institute of Victoria and the Asian Australian Lawyers’ Association. Vinh also volunteers at the Darebin Community Legal Centre.

Vinh is fluent in Vietnamese.

 

 

 

Natasha Mastroianni

Associate

University Qualifications

Bachelor of Laws (Hons), Latrobe University

Bachelor of Arts, Latrobe University

Masters of Applied Law (Family Law), College of Law

Email Natasha Mastroianni

nmastroianni@fortefamilylawyers.com.au

 

 

Connect on LinkedIn

Natasha Mastroianni has experience in a range of family law matters, including property settlements, financial agreements, parenting matters (including interstate and overseas relocation issues), child support and intervention order proceedings.

Natasha was admitted to practice in August 2014 and commenced her career in a generalist practice where she gained experience in family law, property law, wills and estates. Natasha worked in a boutique family law practice prior to commencing at Forte in February 2020.

Natasha has a Masters of Applied Law (Family Law) from the College of Law and speaks conversational Italian.

Having practical experience in other areas of law assists Natasha to understand the interrelated issues involved in her clients’ family law matters. She regularly appears on behalf of clients at Duty List Hearings and other Court events in the Federal Circuit Court, Family Court of Australia and the Magistrates’ Court of Victoria. Natasha also appears as a solicitor agent for interstate or rural practitioners when required.

Natasha prides herself on being able to understand and manage her clients’ expectations whilst providing realistic and practical advice. She acts with empathy and compassion when striving to achieve the best possible results for her clients.

Natasha is a volunteer lawyer with the Women’s Legal Service and is the Vice President of the Northern Suburbs Law Association. She is also a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Mark Di Donato

Lawyer

University Qualifications

Bachelor of Criminology and Justice, Navitas College of Public Safety

Juris Doctor, Monash University

Email Mark Di Donato

mdidonato@fortefamilylawyers.com.au

Connect on LinkedIn

Mark started work at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2019. Mark was later admitted into the legal practice in September 2019 and transitioned into a lawyer role with Forte Family Lawyers in February 2020.

Prior to his admission as a lawyer, Mark volunteered as a paralegal at Darebin Community Legal Centre and interned at a commercial law firm, where he gained valuable experience in property transactions and in intellectual property. Mark also completed a Professional Placement whilst completing his law degree where he provided legal advice on various family law matters through the Monash Law Clinic.

Mark is a member of the Family Law Section of the Law Council of Australia, and the Law Institute of Victoria. Mark volunteers at the Darebin Community Legal Centre and has provided advice on a range of issues including family law.