Bodilly and Hand [2019] FamCA 210 – Cronin J – 9 April 2019

The next two cases saw spousal maintenance continued seventeen and twenty-three years after separation respectively.

Section 44(3) generally prohibits spousal maintenance applications made more than twelve months after divorce except by leave of the court.  However, once any spousal maintenance order has been made, this can change, as the cases below demonstrate.

Bodilly and Hand (names anonymised) [2019] FamCA 210 – Cronin J – 9 April 2019

The parties were married for fifteen years.  There were no children of that marriage.  The wife suffered multiple sclerosis and her condition worsened with time.  At separation, the parties had modest assets.  Subsequently, the husband accumulated significant wealth – more than $10,000,000 – with his second wife and their two children.  At the time of hearing, the husband had been paying spousal maintenance under differing orders for seventeen years since separation.  He argued that he wished to transition to retirement, that he would not be able to make maintenance payments from his retirement income and that it was proper to stop payments now.

This is a thorough, well-reasoned, instructive judgment made under substantial difficulties including confusing and conflicting evidence about parties’ incomes and expenses, confusion, and conflict between legislative intentions, concerning NDIS entitlements and limits on evidence the wife could give (her medical condition meant she could not be cross-examined).  A brief summary does not do it justice.  However, key findings included…

“[The husband’s] desire to end the spousal maintenance is understandable but whilst a lot of time was spent on those questions, it is necessary to ask about their relevance in what is largely a mathematical exercise” (¶42)… The Australian law is about an objective assessment of the economic circumstances of each party if jurisdiction exists” (¶46).

“… the courts should deduct from income ‘unavoidable or compulsory expenses together with necessary expenses’.  That however has to be also seen in the context of what the Full Court said in DJM … about obligations to support a spouse being somewhat different to those of supporting a child” (¶252).

“In a case such as this where the lifestyle of the husband is significant in financial terms, two observations must be made.  First, some allowance has to be made for that lifestyle having been acquired well after the parties’ relationship came to an end and they separated and with the commitments undertaken by the husband with a new family.  Secondly, nothing in the Act refers to an ending of the obligation to provide financial support for a spouse and as such, it cannot be presumed that spousal maintenance is only payable during a work life.  There has to be a balance” (¶253).

The husband was ordered to pay $500 per week on a continuing basis.

Blevins [2019] FCCA 1923

The parties separated in 1996 following a sixteen-year marriage with two children.  The husband had remarried.

A series of spousal maintenance orders were made following separation.  The latter order, made in 2009, provided for payment of a lump sum and included a provision saying “this is an order to which s.77A of the Family Law Act 1975 (‘the Act’) applies and the entirety of the final payment is attributable to the provision of spousal maintenance for the former wife”.  It also included a notation saying “these orders pursuant to section 81 of the Family Law Act 1975 (as amended) shall finally determine any obligation by the former husband to provide spouse maintenance to the former wife”.

In addition, the wife’s solicitor had written to the husband’s solicitor saying “[the wife] is mindful that… the proposed orders anticipate that the settlement will be a final one and that [the husband] will not have to contribute further”.

Baker J cited excerpts from the full-court decision of Atkin and Hunt saying…

“Thus, s 44(3) can be seen as having in contemplation ‘an order previously made’ becoming ‘operative or valid again’”…

“As has been seen, s44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s.74 of the Act so as to seek the revival of ‘an order previously made in proceedings with respect to the maintenance of a party’.  Indeed, as has earlier been seen, the Act contemplates applications for maintenance that sit squarely outside any ‘finality’ said to be effected by the earlier section”.

The court concluded (twenty-three years after separation) that “This means that potentially the respondent may be required to pay spouse maintenance, if he has the ability to pay and the applicant can demonstrate a need”. (¶41).

The matter was referred to conciliation conference with a registrar.