Maintenance – Combined effect of facts supported a finding that the husband was unable to support himself adequately – Court erred when ordering a partial property settlement by failing to consider whether it was capable of being taken into account in final property settlement
In Jabara & Gaber [2021] FedCFamC1A 26 (5 October 2021), Ainslie-Wallace J heard a wife’s appeal from interim orders made by Judge Obradovic that ordered her to pay the husband interim spousal maintenance of $500 per week and $100,000 by way of partial property settlement for anticipated legal costs.
The parties married in 1997 in Country D and immigrated to Australia in 2008. The wife worked as a health care professional and the husband was the primary homemaker but worked as a driver post separation. There were 4 children of the relationship, the youngest was 16 years old. Following separation in 2017, the four children remained living with the husband. One of the children lived with the wife from 2018.
The husband argued that he was primarily dependent on the wife for support and could not work outside the home due to his care of the children. The wife contended that the husband was able to adequately maintain himself and was not entitled to maintenance.
The Court said (at [32]):
“The primary judge’s determination that the husband was not able adequately to support himself was a conclusion which rested on the evidence … [T]he submissions on this ground take each of the matters on which the primary judge relied, and in relation to each, contend that that matter, of itself … is insufficient to prove the point. To do so fails to understand the process by which conclusions based on the facts are drawn. It might properly be said that none of the individual matters referred to in the particulars alone would support a finding that the husband was unable to support himself adequately, however it is their combined effect on which the primary judge relied in coming to that conclusion (see Shepherd v The Queen [1990] HCA 56 … )”
As to the partial property settlement, the Court said (from [41]):
“… It was argued that the primary judge failed to assess the parties’ ultimate entitlements on a final hearing and whether the order sought was capable of being taken into account in the final property settlement.
[42] There appears to be dispute between the parties as to their respective initial financial contributions and the extent of the husband’s financial contributions during the relationship. … [T]he husband purchased a property in Sydney in 2001 which is registered in his name. … [I]n his financial statement, the husband asserts that he holds that property on trust for himself, his mother and his five siblings. … The values attributed to the husband’s … properties is in dispute.…
( … )
[52] … [H]er Honour made no assessment of the nature and quality of the husband’s claim to an order for property, she made no assessment of the various contributions whether financial or otherwise, nor did she turn her mind to what adjustment, if any, might be made pursuant to s 75. … [T]he primary judge had no basis or reference point by which she could be satisfied that the amount sought by the husband was within what he will likely receive by way of final property settlement.
[53] Aligned to that argument was the contention that the primary judge erred in failing to give consideration to if the husband’s assertion that he does not hold the whole of the beneficial interest in the Sydney property, is established. This is especially acute where, as here, the order is to pay legal costs and once paid are gone and the court would have to look to other sources or entitlements of from which there could be an adjustment or payment back of some or all of those funds if it is necessary when the final property orders are made.
[54] … [I]f the husband did hold the legal and beneficial interest in the Sydney property, it would provide him with a means by which the contemplated order could be reversed or otherwise taken into account. If, on the other hand, he, as he assert[s], holds only a 1/6 interest in that property, there is no source of funds or other entitlement from which that necessary adjustment could be made.”
The Court dismissed the wife’s appeal of the maintenance order but allowed her appeal against the partial property order and remitted that application for rehearing.