Legal update - Simpkin & Simpkin and spousal maintenance

Updated: Jan 14

Last year in the matter of Simpkin & Simpkin [2020] FamCAFC 315 (17 December 2020) the Family Court in Sydney increased an order for spousal maintenance based upon an appeal by the wife. As often happens in Family Court judgments there is also a useful summary of some of the basic principles in relation to spousal maintenance.


Background


The Respondent had been ordered on 1 June 2020 to pay interim spousal maintenance by a weekly amount of $750, and a lump sum payment of $10,000.


The applicant had originally sought $1,800 and $20,000, as well as payment towards her legal costs. The lump sum payment related to medical equipment that she needed. The applicant had been medically retired from work and qualified for a disability pension.


The appeal


The applicant sought, on appeal, that the respondent pay her $1,378 as weekly interim spousal maintenance on the basis the primary judge failed to take into account a relevant consideration. The appeal was heard by a single Judge (Ryan J) on 17 December 2020.


There was no challenge made to the finding that the applicant could not support herself, or to the finding regarding either party's reasonable needs, or to the finding that the respondent had the capacity to pay spousal maintenance generally. The primary judge and the appeal judge seemed to agree to dismiss that part of the respondent's expenses which related to supporting the party's adult son, who worked full time.


The primary judge had decided to make provision for less than the applicant needed, and less than the primary judge found the respondent could spare, due to the vicissitudes of life. On appeal, Ryan J found that the respondent could, if he suffered his feared set back, resort to s83 of the Act and apply for the maintenance order to be varied or discharged.


In relation to the order sought in for payment towards the applicant's legal fees, while the appeal Judge found that the applicant should not have to rely upon her savings or superannuation to meet her weekly living expenses, the Judge also felt that the applicant should rely upon her savings or superannuation to meet her legal expenses. It was felt that this need to pay legal fees from superannuation or savings could be taken into account at the final settlement or judgement.


The parties had agreed that if the appeal was successful then rather than remit it for rehearing the Court should make an order based upon the evidence, as such an order was made increasing the weekly payment to $1,378 as sought by the Applicant.


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