Successful appeal in the Federal Circuit and Family Court of Australia re Spousal Maintenance

In the matter of Gilmour & Hofte [2022] FedCFamC1A 111 (19 July 2022), the Ramsden Family Law team was successful in a recent appeal by the husband against interim spousal maintenance orders

Our client, the Appellant, commenced appeal proceedings seeking to set aside the interim spousal maintenance orders on the basis that the primary judge made an error of law.

The Appellant was still required to pay spousal maintenance, as it was established by both the primary judge and the appeal judge, Justice Austin, that the Respondent was unable to adequately support herself or the parties’ two children. However, Justice Austin allowed the appeal finding that the primary judge had indeed “fell into error and, if left uncorrected the Appellant will suffer financial prejudice” [at 8].

The initial spousal maintenance orders were for the Appellant to pay the Respondent $1,100 per week. Justice Austin found that, “the appellant only has the reasonable capacity to pay maintenance of $583 per week” [at 27] and that “there are no assets to which the appellant can conveniently resort to pay more maintenance” [at 30].

Therefore, the orders were set aside and replaced with orders for the Appellant to instead pay spousal maintenance of $583 per week.

Further, Justice Austin ordered that given the appeal was successful due to an error of law, both parties would be awarded costs certificates, meaning the parties would be able to make an application with the Attorney-General to recoup some of the costs incurred with the appeal proceedings.

Ramsden Family Law, with the expert assistance of Mr Keith Wilson, QC, won a great triumph for the Appellant husband.

In the event you are considering commencing appeal proceedings, please note that it will not be enough that you are unhappy with the decision. There must be some error of law. If you think a primary judge made an error in their finding or decision you have 28 days from the date the decision is made to commence appeal proceedings by filing a Notice of Appeal. For more information about the appeal process, visit the Federal Circuit and Family Court of Australia website .

If you need further advice from our expert family law team, please contact us on 1300 749 709 to see how our experienced team can assist you.

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