The High Court has dismissed an appeal from the Full Family Court on spousal maintenance and the meaning of support and ‘financial resources’ under the Family Law Act 1975 (Cth). In late 2013, the primary judge made an interim spousal maintenance order of approximately $10,000 per month pending the final determination of a property settlement and maintenance proceedings between the appellant wife and respondent husband, on the basis that the wife was ‘unable to support herself adequately’ as per s 72 of the Family Law Act. The recently deceased father of the wife had expressed a ‘wish’ that she be paid $150,000 per year from a group of family businesses which, while not enforceable as a bequest, would be carried out by the wife’s brothers who controlled the business group. The husband successfully challenged that order in the Full Family Court on the basis that the primary judge had erred in failing to take into account evidence that the wife was able to seek the $150,000 per year payment, which the Full Family Court held that it could infer that this was likely to be paid if requested, and discharged the interim order on the basis that the wife had not met the conditions in s 72.

The High Court, by majority, dismissed the wife’s appeal. The majority (French CJ, Gageler, Keane and Nettle JJ) rejected the appellant’s arguments that the Full Family Court had made an error of process and had erred in its substantive reasoning. The alleged failure of process was that her ability to request that the business group make a voluntary annual payment to her should have been and was not raised by the respondent during the trial and appeal, and had that been apparent she would have led further evidence (at [35]). The majority held that the wife was on notice of this possibility, which was clear from several references to it in the husband’s affidavit and during the transcript of proceedings (see [39]–[42]), and instead ran the risk that a court would make the finding that she would have received the payment had she asked for it: ‘The fair inference is that she chose to run that risk, hoping that it would not eventuate and conscious that such evidence relevant to that finding as she might adduce would not assist her case’ (at [44]). The majority also rejected the appellant’s arguments that on the evidence it was not open to the Full Court to infer that the group payment would have been made to her if she had requested it, and, in the alternative, that that fact would not be a proper basis for concluding she was not unable to support herself because the payment cannot be regarded as a ‘financial resource’ within the meaning of s 75(2)(b). The majority held that the inference was well open on the evidence: the brothers would have felt under a moral obligation to make the payment, the business group was capable of making the payment, and there was no evidence to suggest they might refuse for personal reasons (at [46]). The majority also held that the Full Court, having made the finding that the wife would have received the payment had she requested it, was correct in concluding that this possibility fell within the scope of s 75: that section goes to a person’s capacities to obtain financial resources as potential sources of financial support, and here, on the evidence the wife was in such a position (see at [53]–[58]).

Gordon J, in dissent, held that the inferential findings of the Full Court were not open on the evidence, and as they were the sole basis of the Full Court’s conclusion that the wife was able to support herself, the appeal should be allowed. While s 75 certainly includes sources of financial support that a party can reasonably expect will be available to him or her, Gordon J identified that source of support as the father’s wish for a payment. After examining problems in the Full Court’s treatment of the evidence, in particular the evidence that was said to support a ‘good relationship’ between the wife and brothers (see at [72]–[89]), Gordon J concluded that because that wish was expressed four years earlier and was as yet unfulfilled by the brothers (who had also failed to provide to the wife a copy of the will expressing the wish), there was no basis for inferring that upon making the request the wife could reasonably expect the payment would be made (at [91]–[92]).