Simpkin & Simpkin 2020 FamCAFC 315
In the case of Simpkin & Simpkin  FamCAFC 315, the court considered spouse maintenance.
The applicant wife sought interim spouse maintenance. Her reasonable weekly living expenses were set at $1,615. She had savings of $17,000 and superannuation valued at $560,000.
The court determined it was not reasonable to require her to use capital to support herself.
The respondent husband had an annual salary of $240,000, and incentives, including the potential for a bonus of $160,000. He has superannuation of $1.126M and savings of about $106,000.
The primary judge determined that the husband had $81,000 in savings.
The husband supported the parties’ adult son who is in fulltime employment. The court excluded that as a reasonable expense, so that the husband had a weekly excess of income over expenditure of $1,327.
The primary judge decided that “the respondent should be left with some form of financial buffer to meet those vicissitudes” and ordered $750 per week.
The vicissitude the husband had pointed to was the possibility of a redundancy. He had suffered a redundancy in the recent past and it had taken him in excess of 12 months to secure a new position.
The primary judge “failed to consider that if the respondent’s circumstances suffered the feared setback, he could resort to s 83 of the Act and apply for it to be varied or discharged”.
The Court of Appeal determined that the primary judge could have found it was reasonable for the interim spousal maintenance to be in the sum of $1,327 per week. The court considered three facts that had been identified in Zschokke and Zschokke  FamCA 79.
There had been no demonstrated inability on behalf of the applicant wife to meet her litigation costs.
The wife did not want to access her super to pay her legal costs. The court said:
“A mere preference does not make the proposed order just and the question to be answered is whether the evidence established that the applicant is unable to meet her litigation costs. That question must be answered that she is able to meet her anticipated litigation costs in their entirety.”
The Court of Appeal re-exercised the discretion and did not remit the matter for re-hearing. The interim spousal maintenance was varied to increase it and the litigation funding order was not reversed.