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Spousal maintenance – wife’s need was premised on anticipated, not actual costs…

family law casenotes

…no error in interim maintenance order

In Badir [2022] FedCFamC1A 109 (19 July 2022), McClelland DCJ dismissed a husband’s appeal from an order that he pay interim spousal maintenance.

The order was worded to commence upon the wife vacating the home, and establishing her own residence in alternate premises ([14]).

The husband appealed, arguing the court erred where there were no findings as to when the wife would leave the home; and no findings as to what the financial circumstances of the parties would be at the time the wife left the home ([16]).

McClelland DCJ said (from [20]):

“The appropriate process to follow in considering an application for spousal maintenance is the four step process as set out in Saxena and Saxena [2006] FamCA 588 … :

(1) To what extent can the applicant support him/herself?

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(2) What are the applicant’s reasonable needs?

(3) What capacity does the respondent have to meet an order?

(4) If steps 1-3 favour the applicant, what order is reasonable having regard to s75(2)? (…)

[57] … [T]he [wife] … knew of the [husband’s] … desire for her to leave the matrimonial home. (…)

[58] … [I]t was not only entirely appropriate but necessary for the … judge to make an assessment of the [wife’s] … future needs based on the assumption that she would vacate the matrimonial home. (…)

[62] [T]he … judge based his assessment of the [wife’s] … future needs on a finding that she would vacate the matrimonial home … The [wife] … gave evidence that she had made … inquiries as to the availability and likely cost of rental accommodation. … (…)

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[65] Insofar as the [husband] … contends that there is uncertainty and/or potential injustice in the manner in which the orders have been expressed such that he is unable to reasonably comply with them, that is … a matter which he can raise in the event of there being the need for enforcement proceedings.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. 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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