Blevins and Blevins [2019] FCCA 1923 (11 July 2019)

In the matter of Blevins and Blevins [2019] FCCA 1923 (11 July 2019), the court considered whether or not leave was required pursuant to s 44(3) to institute spousal maintenance proceedings.  The case determined that leave was not required.

This is a judgment of Judge Baker. 

An application was filed seeking a spouse maintenance payment in the sum of $400 per week to commence on 4 January 2019. 

The application was made 23 years after the parties separated, after a property settlement order and an order in favour of the applicant for periodic spouse maintenance of $750 per month payable for 10 years which was made in 1999 and a lump sum spouse maintenance order in favour of the applicant for $275,000 made in 2009. 

The applicant is 69. The respondent is 71.

The parties were married in 1970 and separated in January 1996. 

The respondent husband has remarried.

The parties divorced in 1998 and the decree was made absolute in 1998.

The importance in the case is the way in which the parties’ final property order was dealt with. It provided that “….and thereafter the wife shall be at liberty to seek the payment of further spousal maintenance pursuant to the Family Law Act 1975 as amended”.

The orders contained a s 77A order that said the entirety of the final payment of $275,000 was attributable to the provision of spouse maintenance for the former wife, and there was a s 81 notation indicating that this was to finally determine any obligation by the former husband to provide spouse maintenance to the former wife.

The wife had been on a disability support pension in 2009.  On 5 June 2014, she attained the age of 65 years and she was required to move to an aged pension with a different asset test. Later, that asset test was changed to take into account superannuation, and she lost all pension income from January 2017. 

At paragraph 16, the court set out the applicant’s submission in the following terms:

“Counsel for the applicant relied on the Full Court decision of Atkins and Hunt [2016] FamCAFC 230. In that decision, Murphy J said: “˜As has been seen, s 44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s 74 of the Act so as to seek the revival of “an order previously made in proceedings with respect to the maintenance of a party”. Indeed, as has earlier been seen, the Act contemplates applications for maintenance that sit squarely outside any “finality” said to be effected by earlier orders.”

The court also relied on Emerald and Emerald [2017] FamCA 798 and the court said:

“Paragraph 44(4)(b) of the Act provides that leave shall not be granted unless the court is satisfied that, in the case of spousal maintenance, at the time of the decree (now order for divorce) became absolute (now final), the circumstances of the applicant were such that she would have been unable to support herself without an income tested pension, allowance or benefit.”

The respondent relied on the Caska & Caska [2001] FamCA 1279 case as authority for the case that if an order has been complied with and has been perfected, it has ceased to have any further operation.  If there is no existing order that is capable of variation, amendment, rescission or the like, there is requirement for a fresh application.

The court considered, at paragraph 28, the relevant law and referred to s 83 of the Act. It is clear that this was a new application and not an attempt to vary a previous order.

The court agreed with the counsel for the respondent that there was no order in force. This application was therefore not an application under s 83 of the Act.

The court determined that it had power to grant leave to institute proceedings out of time if the matters in s 44(4) were satisfied.

The court discussed the difference between the extent of finality offered in relation to spouse maintenance and the level of finality offered in property settlements.

The court again referred to Atkins and Hunt and Murphy J’s decision in which he said at 52 to 54:

“First, and centrally, the liability for spousal maintenance does not come to an end upon the end of the marriage, nor necessarily when orders are made pursuant to Part VIII of the Act. While the court is required, as far as practicable to effect a “clean break” – to “make such orders as will finally determine the financial relationships between the parties … and avoid further proceedings between them” – the liability for spouse maintenance is that of a “party to the marriage”. The latter expression is defined as including a person who was a party to a marriage now ended by death, divorce or annulment.  That new spouse maintenance orders can be made in circumstances where the initial order is properly made within time is entirely consistent with a liability for spousal maintenance persisting despite the formal end of the marriage or other financial orders having been made.

Secondly, no specific reference is made within s 44(3) either to s 83 itself or to any link between the expressions used within s 44(3) and like expressions in s 83. In that regard, it is of significance in my view that the exceptions provided for in respect of settlement of property are made by reference to specific sections whereas the expressions used in respect of maintenance are not. The nature of orders for settlement of property and their “finality” should be contrasted with orders for spousal maintenance which the Act contemplates specifically might be later modified. Despite that important distinction, the words use in s 44(3) are not confined by specific reference to s 83.

Thirdly, the expression “an order previously made” is not defined, confined or restricted in its operation. Fourthly, the expression “revival” is not confined in s 44(3), as it is in s 83, to the situation where an order has been suspended. Finally, the word “revival” is a word of ordinary usage and meaning. It means, for example, “the state of being revived” which is “to become operative or valid again” or “restoration to use, acceptance or currency” or “an instance of something becoming … active or important again”. Thus, s 44(3) can be seen as having in contemplation “an order previously made” becoming “operative or valid again”.”

The court determined that the 12 month limitation period in s 44(3) does not apply to a matter where an order made in “proceedings with respect to the maintenance of the wife” is an order previously made. 

At paragraph 60, Murphy J said:

“As has been seen, s 44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s 74 of the Act so as to seek the revival of an “˜order previously made in proceedings with respect to the maintenance of a party’.”

In this case, the court found that the applicant did not need to obtain leave pursuant to s 44(3). The matter was then sent for an ordinary spouse maintenance determination.