Maintenance varied – Woden & Silver (No 2) [2015] FamCA

Maintenance varied – Woden & Silver (No 2) [2015] FamCA 1108 (11 December 2015)

Last Updated: 8 January 2016

FAMILY COURT OF AUSTRALIA

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1108.html

1. Mr Woden (“the husband”) and Ms Silver (“the wife”) married in 2010 and were divorced on 8 July 2013. They have one child, B, who was born in 2008.
2. On 15 January 2015, Stevenson J made Orders for the payment of spouse maintenance by the husband to the wife in the sum of $200 per week. At that time, the wife’s income was found to consist only of social security benefits and child support.
3. In the proceedings now before the Court, the husband seeks to discharge the spouse maintenance order.
4. In support of his application, the husband relies on the Family Report dated 27 July 2015 which was prepared for the parenting proceedings. At Paragraph 5 of the report the Family Consultant records:

[The wife] is self-employed as a …, and she also conducts workshops on “…”. She has been in a relationship with [Mr C] for the past seven or eight months and [Mr C] lives with [the wife] and [B].

5. B told the Family Consultant that she lives with her mother and “[Mr C]” who she calls “Dad”.
6. Mr C told the Family Consultant that he teaches part time at University D where he is completing his PhD.
7. The wife and Mr C are engaged to be married.
8. The wife opposes the application.
9. She relies upon a Financial Statement sworn 10 September 2015 and an affidavit sworn by her on the same day.
10. In her Financial Statement the wife discloses that she is in receipt of benefits of $266 per week and that she receives child support of $249 per week for B. She deposed that Mr C’s income is $497 per week.
11. At Part F of the Financial Statement, the wife indicates that no expenses are paid by Mr C on her behalf.

18. The modification of spouse maintenance orders is governed by the provisions of s 83(2) of the Family Law Act 1975 (Cth). Those provisions are set out below:

(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

(a) that, since the order was made or last varied:

(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);

(ii) the circumstances of the person liable to make payments under the order have so changed; or

(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative–the circumstances of the estate are such;

as to justify its so doing;

(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;

(ba) in a case where the order was made by consent–that the amount ordered to be paid is not proper or adequate;

(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.

19. The husband has established that, since the making of the Order for spouse maintenance, the wife has entered into a stable and continuing de facto relationship. That fact, coupled with the uncertainties associated with Mr C’s contribution to expenses which he should share, justifies the variation of the order in accordance with the husband’s application.