Spousal maintenance – court erred in allowing husband a ‘financial buffer’ for ‘vicissitudes of life’ when calculating interim spousal maintenance

In Simpkin [2020] FamCAFC 315 (17 December 2020) Ryan J, sitting in the appellate jurisdiction of the Family Court of Australia, allowed in part an appeal of interim orders where the wife was unable to work and the husband worked in a managerial position.

The husband was found to have a weekly excess of income of $1327. The court ordered the husband to pay maintenance of $750 per week to allow him “some form of financial buffer” ([15]). The court dismissed the wife’s application for an interim costs order ([13]).

Ryan J said (from [16]):

“The reference to ‘the vicissitudes of life’ is to the [husband’s] … submission that the Court could not … proceed on the basis that he would continue to earn at his current level and … he could be made redundant.

[17] … [T]he primary judge failed to consider that if the [husband’s] … circumstances suffered the … setback, he could … apply for it to be varied or discharged. (…)

[18] … [T]he primary judge should have determined that it was reasonable for the [husband] … to pay interim spousal maintenance in the sum of $1327 per week … ”

As to the wife’s application for an interim costs order, Ryan J said (from [23]):

“[C]ounsel for the [wife] … relied heavily on Zschokke [1996] FamCA 79 … where this Court identified factors relevant … :

1. a position of relative financial strength … of the respondent;

2. a capacity … of the respondent to meet his … litigation costs; and

3. an inability … of the applicant to meet … her litigation costs.

[24] … [T]he first two factors … were established …. However, … fatal to the application … the third … was not. … The [wife] … does not wish to access her superannuation … and her preference is to receive a share of the [husband’s] … savings. A … preference does not make the proposed order just and the question … is whether the … [wife] … is unable to meet her litigation costs (…)”

The court varied the interim order for maintenance from $750 to $1327 per week.

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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