Ferrick & Ferrick (2020) FamCAFC 61
In the case of Ferrick & Ferrick [2020] FamCAFC 61 included an appeal from property orders. The trial judge had made property and spouse maintenance orders.
The appeal was allowed, and the proceedings were remitted for rehearing.
In terms of the care aspect of these proceedings, the mother appealed from the orders which allocated equal shared parental responsibility and designated the time the child was to spend with the father, and from the primary judge’s refusal or failure to make other orders for which she had applied, and the mother appealed from all of the financial orders.
The two appeals were consolidated and heard together.
The appeal with respect to the care orders was not successful.
The court said of the property and maintenance appeal:
“The property and spousal maintenance appeal comprised 32 separate grounds of appeal. Regrettably, they were pleaded in such a discursive way that many were not recognisable grounds of appeal at all, since the available grounds of appeal from a discretionary judgment are both confined and defined.”
The court said:
“This appeal was a good example of the situation in which multiple grounds of appeal conceal the essential points.”
The summary of argument was conceded to “amble incorrectly into submissions”.
The court said:
“The father helpfully conceded in his Summary of Argument that the “˜judgment is vitiated by numerous errors of material significance’.”
Although the parties both conceded that the property appeal should be allowed, the court reviewed the aspects of the original judgment. The spouse maintenance claim by the mother had been to have the lump sums already paid to her to be characterised as lump sum spousal maintenance and she also applied for an order for periodic spousal maintenance of $1,558.59 a week.
The primary judge said:
“That she is to receive most of the cash held in trust, I cannot make a finding that her immediate need has not been met, because the amount received, if thought of in terms of an annual salary, would be high and tax free.”
The court said:
“Respectfully, the mother’s imminent receipt of $312,276 (to the nearest dollar) in cash, together with some modest superannuation and items of personal property, hardly precluded her asserted need for periodic spousal maintenance. She needed the cash to find alternative accommodation for herself and the child. She was not obliged to exhaust her capital before her entitlement to maintenance crystallised.”
This case deals with other aspects but it is the spouse maintenance point that is of interest.