…where considerable uncertainty as to husband’s capacity to pay maintenance
In Holman & Bates  FedCFamC1A 141 (8 September 2022), Tree J heard a wife’s application for leave to appeal the discharge of an earlier, urgent spousal maintenance order.
The wife was diagnosed with a terminal illness in November 2021 and had been undergoing palliative care at the time of the hearing.
On 27 January 2022 the magistrate made an order for urgent spousal maintenance of $800 per week, pending the interim hearing. At the interim hearing, the magistrate dismissed the urgent spousal maintenance order and transferred the proceedings to the Family Court of Western Australia.
Tree J said (from ):
“Although the … magistrate did not make a stand alone order dismissing the wife’s interim application for periodic spousal maintenance … it is evident his Honour intended to determine the wife’s application (…)
 It seems clear that the … magistrate was not persuaded that the husband had capacity to pay spousal maintenance, but nonetheless went on to say that s75(2) considerations would persuade him not to have made an order for spousal maintenance in any event. So construed, there was no conflation of ss72, 74 and 75(2)(o) of the [Family Law] Act [1975 (Cth)].
 … [T]here was considerable uncertainty as to the husband’s capacity to meet an order for spousal maintenance, particularly given that both his income and expenses were expressly said to be estimates …
 It was for the wife to satisfy the primary magistrate of the husband’s capacity to pay, and the state of the evidence was sufficiently unclear that it was certainly open to the primary magistrate to conclude as he did, namely that he could not ‘make definitive findings as to what surplus, if any, the husband has over income and expenditure’ …”
The wife’s application for leave to appeal was refused; her notice of appeal dismissed; and she was ordered to pay the husband’s costs fixed at $5000.
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).