In the recent decision of Elei & Dodt (2018), the Full Court of the Family Court allowed an appeal by a de facto husband against an Order that he pay interim spousal maintenance to his de facto wife in the sum of $1450.00 per week after finding that the husband did not have capacity to pay.
In his appeal against the original decision, the de facto husband argued that the de facto wife had failed to establish that she had a need for financial support because she had not made adequate attempts to secure employment.
The husband also argued that he did not have capacity to pay the wife spousal maintenance in the sum of $1,450.00 per week and referred to his current weekly expenses, including the financial support of his new partner and her children.
Wife’s Need for Financial Support
The Full Court found that the de facto wife was not required to apply for jobs which she knew she would not secure and need not apply for work which was completely different to the type of work and standard of living she engaged in while the parties were together. It was accepted that the de facto wife was struggling financially, wished to return to work but required funds in order to renew her real estate license and needed to get her life in order, so that she would be able to re-enter the workforce.
Husband’s Capacity to Pay
The Full Court found that the trial Judge fell into error when assessing the husband’s capacity to pay, including by disregarding the de facto husband’s responsibility to support his new partner and her children when assessing his expenses. The Full Court thus held that the husband would suffer substantial injustice if the appeal against this Order were not allowed.