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Kay’s Case Note: Garston & Yeo (No. 2) [2019] FamCAFC 139

By November 4, 2021 No Comments
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The case of Garston & Yeo No. 2 [2019] FamCAFC 139 is an interesting case as an appeal against a spouse maintenance order.

The applicant had applied for interim spouse maintenance of $2,500 per week. The trial judge wasn’t satisfied that such a sum was necessary to meet his reasonable needs.

A finding was made that his reasonable needs were $1,000 per week. There was no issue as to the capacity of the appellant to meet the payments.

In the appeal, the appellant claimed that the respondent’s evidence as to his needs was “weak, speculative and unreliable as to be unacceptable”.

Some expenses were not permitted, and some were reduced.

Paragraphs 29 and 30 of the judgment are of interest to practitioners particularly.

Paragraph 29 provides:

“A claim for maintenance is not limited by reference to current expenses because an applicant applying for maintenance may not have the ability to pay for commitments necessary to support themselves (s 75(2)(d) of the Act) and thus avoid incurring what otherwise would be a reasonable expense. Therefore, the focus is on what is necessary for support.”

Further, in paragraph 30, the court said:

“It is reasonable to claim that you need more money than you are currently spending.”

The appeal judge quoted the trial judge.

The trial judge had considered that the respondent to the appeal had savings of $115,000.

The trial judge said:

“He has ongoing costs such as the costs of litigation, and his ongoing health needs which may require drawing on those savings.”

The trial judge had considered that the respondent should not have to draw on his capital.

At paragraph 39, the court said:

“It is clearly established that a person seeking spousal maintenance is not necessarily obliged to resort to any capital that they might have before they can receive the benefit of an order for spousal maintenance (Bevan & Bevan (1995) FLC 92-600; Mitchell and Mitchell [1995] FamCA 32(1995) FLC 92-601). The existence of such capital is, however, a matter to be taken into account as the Full Court explained in Fewster & Drake [2016] FamCAFC 214.”

 This Appeal Court reminded us:

“However, these two authorities do not establish that the capital of a person seeking spousal maintenance is always to be entirely disregarded.  Rather, the point is that the possible need to retain that capital and not use it for day-to-day support is a relevant consideration to take into account.”