Keymer & Keymer (2020) FamCAFC 70

In the case of Keymer & Keymer [2020] FamCAFC 70 dealt with interim spousal maintenance and interim parenting matters.

The parties appeared unrepresented before the Full Court.  The Respondent appeared by telephone and Ryan J, sitting as part of the Full Court, by video link.

The father was granted leave to appeal and the appeal was allowed in part.

The interim spouse maintenance application was remitted for rehearing in the Federal Circuit Court.

Pending the further order or a further determination, the husband was ordered to pay interim spouse maintenance in the amount of $386.69 per week.

The father had sought that the child move to his care because the mother posed an unacceptable risk to the child from exposure to family violence and psychological abuse.

There was evidence that corroborated the father’s evidence that the mother has a history of domestic violence towards her partners (including him) and of psychologically abusive behaviour towards the child.

The court noted that the father had “nevertheless allowed the child to reside with the mother for the past two years, and has never brought an application for the child to live with him” (until now).

At paragraph 17, the Full Court said:

“An interim hearing is concerned with the immediate and proximate future whereas a trial will address a child’s long term needs. It needs to be understood that an assessment of risk undertaken in an interim hearing can be very different to that undertaken at trial. More often than not, the evidence adduced at trial is more comprehensive than that adduced for an interim hearing and cases such as this one often have the benefit of expert opinion. Thus it is not uncommon to see a different outcome following a trial to the arrangements established after an interim hearing conducted on the papers.”

A finding had been made by the trial judge as follows:

“35.   The fact that the father has refused to pay child support, contribute to school uniforms, and is now in arrears in school fees only demonstrates to me that he does not act in the child’s best interests, but remains entrenched in a poor, if not non-existent, co-parenting relationship with the mother.”

The court then reviewed the fact that between February 2017 and January 2019 the father voluntarily paid $725 a week by way of spouse support and child maintenance. The mother then applied for an administrative assessment of child support.  The mother chose to cancel the child support and the disruption which followed was a situation of her making. The court noted that the father had fallen into arrears of school fees. The court said, “Her Honour’s conclusion on the point is unfair.”

These comments, however, were discussed by the trial judge under the heading of interim spousal maintenance.

The court referred to Medlow & Medlow (2016) FLC 93-692, quoting:

“The husband must satisfy the court that in all the circumstances the spousal maintenance decision is attended by sufficient doubt warrant it be reconsidered by the Full Court and that substantial injustice would result if leave to appeal were refused.”

 The mother sought $850 a week.

At paragraph 33, the questions asked by Coleman J in Saxena and Saxena (2006) FLC 93-268 at 80,551:

Q1          Can the Applicant support himself or herself adequately?

Q2          If not, what are the Applicant’s reasonable needs?

Q3          What capacity does the Respondent have to meet those needs?

Q4          What order is reasonable having regard to section 75(2)?

The Full Court was satisfied that the primary judge had considered the totality of the mother’s circumstances. They also noted:

“It is well settled, that on an application for interim spousal maintenance, the evidence need not be so extensive and the findings not as precise as would be required for final orders (Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081).“

In this case, the primary judge did not make findings as to the mother’s average weekly expenses, necessary expenses or the like. “Rather, on the basis that the mother was unable to support herself adequately, the reasons for judgment focussed on the father’s capacity to pay.”

The court found that he had a capacity to pay $850 per week in spousal maintenance.

The court had determined that the father’s expenses in Part N could be trimmed but did not engage in a similar exercise for the mother.

The court said:

“It was not open to the primary judge to proceed as the mother contended and use a claim for spousal maintenance as a mechanism to achieve both spousal maintenance and child support.  Although in interim spousal maintenance determinations a broad brush approach will be tolerated, it cannot be so broad as to render a claim for spousal maintenance and child support indistinguishable.”

The primary judge had not considered section 75(2)(d) and section 75(2)(na).

The mother had conceded the amount of $386.69 was appropriate and as a result, that was ordered pending the remitting of the hearing.

This reminds us of the importance of treating both parties in the same way and the process of reviewing and trimming expenses from Part N is part of that recognised process. Coleman J’s four question summary is helpful and so are the reminders of the limits of interim proceedings.