Nips & Tucks, Holidays and Facelifts – Financial Obligations Beyond Separation and Divorce5-December-2019 Family Law By Simone Green
While it seems extraordinary that an ex-partner should be obliged to provide for the cosmetic ‘needs’ and entertainment of their ex, this very scenario recently played out in a Family Court appeal against an interim order that the husband, Mr Garston pay spousal maintenance for his ex-husband Mr Yeo of $1,000 per week. Fascinatingly, the Court was responding to an Application that Mr Garston pay Mr Yeo a weekly sum of $2,500 for his expenses, including $550 per week for travel and $350 per week for skincare! Senior Family Lawyer, Rosemary Hanna explores the controversial issue that is spousal maintenance.
The Full Court appeal case of Garston & Yeo (No.2)  FamCAFC139 involved a same-sex couple who met in December 2012, were engaged in 2013 and married in 2018. By August 2018, they had separated.
The Trial Judge in Garston & Yeo ruled that Mr Yeo was ‘not in good health’ and had some mental health issues arising from the separation that caused him to seek psychological assistance.
Mr Yeo had not worked since 2014 and was at the time of the trial, actively seeking work. As such, the Court determined that Mr Yeo was unable to support himself adequately, being one of the factors considered in a spousal maintenance claim.
In determining Mr Yeo’s claim for maintenance in the sum of $2,500.00 per week, the trial Judge had to consider if that sum was necessary to meet his ‘reasonable needs’, and ultimately reduced the maintenance to $1,000.00 on the basis that his expenses were offset by living with a friend and reduced the claims for car expenses, skin care and holidays.
In the Garston & Yeo case, there was no issue with Mr Garston’s capacity to meet payments for spouse maintenance (the second limb of the test for spousal maintenance). The appeal was mainly to address whether the trial Judge believed that $1,000.00 per week was a reasonable amount to meet Mr Yeo’s needs as well as whether or not Mr Yeo should have first depleted the money he had available before seeking spouse maintenance.
The trial Judge in the Garston & Yeo case commented that Mr Yeo’s claim for $350.00 per week for skin products and laser treatment, on the evidence before her, was not a reasonable expense as it was not medically necessary.
As for holidays, Mr Yeo sought $550.00 per week as a holiday allowance, amounting to approximately $28,600.00 per year. Travel had been part of the former lifestyle of the couple, however, the Trial Judge considered that the amount claimed was excessive, and in circumstances where Mr Yeo was currently seeking employment, his future holiday opportunities were likely to be more limited than they once were, allowing $225.00 per week, instead – still a significant amount for travel for one person.
The Appeal Court in Garston & Yeo considered that the trial Judge gave adequate reasons for a finding that $1,000.00 per week was reasonable on the basis that the trial Judge carefully scrutinised Mr Yeo’s evidence as to his reasonable needs, and not all of it was accepted.
The Appeal Court in Garston & Yeo also confirmed that “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…” (paragraph 29) and that you don’t have to spend your savings (capital) before making a claim for spouse maintenance if you can prove you have a reasonable need for those funds (medical or other needs) (paragraph 39).
The case is a good reminder to those considering making an application for spouse maintenance, that provided your spouse can pay what you are asking for AND you are being reasonable in your application, your claim is likely to have good prospects.
Each case is decided on its own facts and merits, and as such, it is important that you obtain your own legal advice whether making a claim for spousal maintenance or responding to one. If you need advice on spousal maintenance or any aspect of family law, Streeterlaw has an experienced Family Law team, with an Accredited Specialist in Family Law who can help. Please call us on 02 8197 0105 and speak to our Family Law solicitors today.
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