Law Essay Example: s72 Family Law Act

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether -

(a) By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) By reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) For any other adequate reason;

Having regard to any relevant matter referred to in subsection 75(2).

Taking into consideration of the following case, let reflect on the situation therein.

Kym and Charles were married for 16 years. They separated 2 years ago. They have two children, Alice, aged 14 and Megan, aged 10. Both girls live with Kym approximately 75% of their time and with Charles approximately 25% of their time. Charles was 30 when the couple married and Kym was 22. Charles is a mining engineer who spent six years in his twenties working in remote locations. A combination of high disposable income and prudent investment allowed Charles to purchase a residential property in Hillary's in his own name when he was 28 before he met Kym. He paid $200,000 for the property which is now valued at $600,000. He completed the repayments on the loan he took out to buy the property before he and Kym were married. For the first 10 years, they were married Kym and Charles lived in a small mining town in the north of Western Australia. During that time Hilary's house was rented out and they used the income from the property to pay the rent on their own rented accommodation.

Kym trained as a nutritionist and had been working for 18 months when she and Charles were married. She was unable to continue in that line of work in the mining town where they lived. Instead, she took on casual secretarial work until Alice was born. From then on until they separated, Kym was a full-time homemaker. The family took holidays twice a year for a total of six weeks. For two of those weeks each year Charles traveled to overseas locations to go hiking and get away from it all'. At those times, Kym and the girls stayed with Kym's parents, who live on a farm in the Wheat belt. For the remainder of the holiday time, Kym and Charles rented a beach house in the southwest or spent time in Perth. When Alice was six years old, she was diagnosed with leukemia and spent a total of nine months in Princess Margaret Hospital for Children, before making a full recovery. Kym and Megan lived with Kym's aunt, Anne, in Perth while Alice was in a hospital. Anne refused to accept any payment by way of rent or board or for looking after Megan while Kym was at the hospital. Charles spent approximately six weeks in Perth with his family during this time.

Kym is from a large farming family. The farm and all its assets, valued at more than $5 million, are owned by a family trust of which Kym is a beneficiary. Kym's father is the appointer and trustee of the family trust and his wife, Kym and her three brothers are the beneficiaries. There have been no distributions from the trust to Kym, though there have been distributions to two of Kym's brothers who work on the family farm.

Eight years ago Kym and Charles purchased an investment property in Mullaloo as joint tenants. They moved to Perth at about this time. Charles spent much of his free time over the next two years working on this house which was in a run-down state. Charles provided half of the purchase price of $200,000 by selling a large parcel of Qantas shares that he acquired during the marriage. Charles has been making the mortgage repayments on a bank loan of $100,000 for the Mullaloo property. The Mullaloo property was in need of renovation when it was purchased, and Kym borrowed $50,000 from her grandmother to pay for the renovations. The loan is interest-free and repayable over twenty years, though Kym's grandmother has often said to Kym, "don't worry too much about the repayments, I'll just leave less to you than the others when I shuffle off this mortal coil". Once the renovations were complete the house was rented out for four years.

When they returned to Perth, the family moved into Hilary's property and lived there for six years until Charles and Kym separated on amicable terms. Upon separation, Charles moved into the Mullaloo house and Kym stayed in Hilary's house. Following their return to Perth and after their separation, Charles worked at a mine in the northwest town of Port Holland on a fly in-fly out basis, two weeks on, one week off. When he is in Perth he lives at the Mullaloo house and Alice and Megan stay there when they are with him. Charles' income is approximately $150,000 per annum and he has superannuation benefits valued at $1 million. Six months after separation Charles purchased in his own name a residential property in Port Holland, where he works. The purchase price was $200,000 and Kym provided half of the deposit of $20,000. There has been a dramatic increase in the value of properties in the area because of the mining boom and a chronic shortage of accommodation. As a result, the Port Holland property is now valued at $600,000.

Similar to Martin & Newton case, and since the separation, Kym has worked two days a week as the school canteen manager at the school that the girls attend. Kym wants to update and upgrade her qualifications as a nutritionist but does not wish to return to study until Megan starts high school in a couple of years. Kym earns approximately $15,000 per annum. Her superannuation benefit is valued at $30,000. By an informal and unwritten agreement, Charles has been paying child support for Alice and Megan to Kym and spousal maintenance of $200 per week since they separated.

Charles recently filed an application for a divorce order. Relations between the couple have become strained since Kym learned of Charles' plans to remarry. Their relationship has become even more strained since Kym learned that Charles won $1.2 million in a lottery shortly after they separated and that he has either spent it on holidays or lost it on the stock market. Charles has told Kym that he has resigned from his position in Port Holland. He plans to return to study in Perth on a part-time basis to obtain qualifications as a secondary teacher and take a job where he can be closer to Alice and Megan and his new wife. Further, Charles has discontinued payment of spousal maintenance to Kym, saying he can no longer afford to pay her and it is a time she stood on her own two feet.

DISCUSSION

Charles and Kym are parties to the marriage and they are liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately

They both have two children who are under 18 years that they require parents maintenance. The court shall take into consideration is that the age and state of health of each of the parties. Charles and Kym are 46 and 38 respectively. Charles has the following income, property and financial resources, residential property in Hillary's worth $600,000.Kym is entailed to the share in the family assets, valued at more than $5 million, are owned by a family trust of which Kym is a beneficiary. Both parties in the marriage purchased an investment property in Mullaloo which they both contributed either by purchase or by maintenance.The physical and mental capacity of each of them for appropriate gainful employment are good as Charles is engaged in the mining activities as a mining engineer and Kym is trained as a nutritionist so both parties are able to make a gainful employment.

Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

Both parties to the marriage have care and control of the child as Charles When he is in Perth he lives at the Mullaloo house and Alice and Megan stay with him and by an informal and unwritten agreement, Charles has been paying child support for Alice and Megan to Kym and spousal maintenance of $200 per week since they separated.

Commitments of each of the parties that are necessary to enable the party to support:

Each party to stand alone both parties are committed to each as Charles have been paying spousal maintenance which a good gesture to see the level of commitment.

Responsibilities of either party to support any other person, after separation Charles is considering remarry therefore his responsibilities to support another person are therein.

The eligibility of either party for a pension, allowance or benefit under:

There is no mention either party entailed to the pension allowance in the above case. where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable; The party in the above case have separated .it has been show very clearly that Charles and Kym have been living apart but the marriage has not be dissolved legally.

Extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, Charles has been paying $200 per week to Kym but the amount of the consideration has not been able to contribute to Kym incomes and earning capacity as Kym is forced to work twice per week as opposed when she was a homemaker, these clearly bring out the consideration has not been able to contributed to incomes and earning capacity.

The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration and the need to protect a party who wishes to continue that party's role as a parent. Charles and Kym have spent 16 years in the marriage which both of them has been to contribute to each other earning capacity as each other income from the investment that they undertook together is increasing in value. Kym is under maintenance of Charles of which is entitled to a more considerable amount. Kym needs to be protected as a party who is interested to continue with the role of the parent as well as Charles as his wish to spend more time with children.

If either party is cohabiting with another personthe financial circumstances relating to the cohabitation.it is not clearly stated where each party has been cohabiting with another person but someone can tell that Charles is most likely to be cohabitation as is considering to remarry.

The clean break principle the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them. Both parties need a cleanest break so as to determine the financial relationship between the party which will set Charles and Kym separately as far as possible

The following are type of order a court can give in its own wisdom

S74 interim and final orders , S77 FLA urgent spousal maintenance , S80 FLA types of orders that the Court may make, including interim orders , S82 cessation of maintenance orders, S83 variation of maintenance orders.

Bibliography

Articles/books

Garland, Fae Sinead. "Valuing Domestic Contributions: A Search for a Solution for Family Law." (2012).145

Kovacs, Dorothy. "The jurisdiction of the Family Court with respect to family companies." Adel. L. Rev. 8 (1982): 163

Finlay, H. L., M. F. A. Otlowski, and R. Bailey-Harris. "Family law in Australia." (1997).

Cases

Stanford v Stanford (2012) 247 CLR 108Af

Peters...