Simpson & Simpson (No 3) [2025] FedCFamC2F 1684 (28 November 2025)

1. Looking forward, if the Court accepts there is a medical basis for the applicant's supplements and integrative therapy treatment, it amounts to an average of about $247 per week for at least two years.[7]
2. Apart from the medications referred to at [30] of these reasons, the applicant also identified that she would be taking cancer medications, for five to 10 years, but there is no probative evidence about the ongoing cost of these.
3. Further, the applicant states that she will reasonably incur the following costs of treatment in the future:

Reconstruction Surgery out-of-pocket, surgeon does not participate in Gap Cover Scheme

EMDR Therapy (with Mr O, mental health social worker)

Multiple sessions booked on 3, 17 and 24 June 2025[12] at $195.00 per session[13]

1. The applicant also said that she will incur miscellaneous medical expenses and other costs for blood tests, a bone density scan, genetic testing, and other tests in the future for which Medicare rebates are not available. However, she has not provided any evidence about the quantum of these costs nor medical evidence that they are likely to be required.
2. The evidence at [30] and [33] of these reasons provides total expenditure by the applicant for her diagnosis and treatment in the future of:

Monthly medication regime at $990 per month for a minimum of 24 months

Projected total (including future surgeries and ongoing medications)

1. The applicant also states that she has paid for an out-of-hours Accident & Emergency fee of $260 relating to one of the children.
2. When cross-examined about her limited income and her need for support, the applicant's evidence was that:

(a) The younger child lives primarily with her in accordance with the final parenting orders.[14] The respondent pays child support and they share some other costs related to the two children of the marriage;

(b) The elder child, who is now an adult, splits his time between living with each party. He receives Centrelink payments comprised of a Youth Allowance payment and a further payment which is part Job Seeker and part disability pension;

(c) The elder child sees a psychiatrist and takes medication for Attention Deficit Hyperactivity Disorder, which is not covered by the Pharmaceutical Benefits Scheme but for which a partial rebate can be obtained from the private health insurer;

(d) She agreed that the elder child is doing better now that he is taking medication and engaging in therapy;

(e) She agreed that the parties do not communicate about the children or their needs;

(f) She agreed that the elder child had engaged in employment by way of fruit picking for three weeks, adding that she had arranged it and that they undertook that work together;

(g) The younger child is in good health and will shortly begin a casual job at a supermarket, and he is learning to drive;

(h) She agreed that the respondent pays the private health premiums for the parties' family policy, although she is the policy holder as a discounted premium is available due to her having "lifetime cover";

(i) She agreed that the respondent was never ordered to pay spousal maintenance from his income, but clarified that there was an order for it to be paid from joint funds and the mortgage redraw facility;

(j) She agreed that she received 60 per cent of the parties' net non-superannuation assets and 50 per cent of the parties' superannuation assets in accordance with the final property orders pursuant to s 79 of the Act;

(k) She had initially sought $500 per week for two years in her spousal maintenance application filed in August 2024 because that is what she was receiving for most of the period since separation under the order of the Court;

(l) She agreed that the parties' divorce order became effective in early 2022 and that she had filed the SMA more than two years later;

(m) She stated that she was aggrieved by the property adjustment orders because she was led to believe the payments of $500 per week were open to re-characterisation, but when she got legal advice that is not what the order said;

(n) She did not work in September 2024. At this time, she was moving out of the former matrimonial home and buying another, but the primary reason for not working at this time was to care for the elder child;

(o) She agreed there was no legal requirement for the elder child to be in her care "24/7". However, she added that his mental health was suffering and so she willingly sacrificed her time, which I took to mean her availability for work also, to care for the elder child and to "save [her] son";

(p) The applicant completely disagreed that it was unnecessary for her to take leave from her work and stated that she had a healthcare professional say that it was necessary. She added that the elder child meant more than an income and that she had arranged interventions, engagement with a therapist, and engagement in EMDR therapy. She said that her care of the elder child was to ensure that he was safe because he was left alone for 10 hours a day in the respondent's care, and that she was in grave fear for his safety because he had been taking drugs and committing crimes;

(q) When challenged about what knowledge she had of the elder child's behaviour as he was mostly residing at the respondent's home and at her adult daughter's home, the applicant disputed this and said she had every idea because of what was being posted on Instagram and what her adult daughter told her. Further, she said that they were carefully tracking where he was and what he was doing;

(r) She agreed that she received $1,208,000 from the sale proceeds of the former matrimonial home and agreed it was available to set her up moving forward in her life;

(s) She stated that she had taken eight weeks off work to relocate and going to open homes because she needed to find another property before the sale of the former matrimonial home;

(t) She agreed that she had a budget and could have planned for the future, but added she had to have a home for herself and the children. Further, the property she bought was quite small and modest, and was very modest compared to what she had lived in during the marriage;

(u) She agreed that she knew she had to budget the proceeds of her property settlement and had still spent $1,030,000 on the new home;

(v) When asked why she did not rent rather than purchasing a home, she stated it was a priority not to rent, particularly for the younger child who needed a home base. A rental may not be a permanent home, and she had prioritised stability for herself and the children;

(w) She added that when she bought the new home, she thought she would be returning to work. However, then she could not do so due to her unexpected cancer diagnosis;

(x) It was put to her that she was losing $400 per week gross when not working, but she said it was about $350 per week net. She disputed that she had opted not to receive the income. She added that she had asked for increased hours, but it was not granted by her employer;

(y) She did not agree that there would be opportunity for her to pick up extra work in the future, and said that there is only limited additional permanent hours available with her employer;

(z) When a bundle of documents from her employer[15] was put to her in the context of taking four days leave in August 2024, she stated that the leave from employment was due to the elder child's poor mental health and resulting hospitalisation and that she was needed by him;

(aa) She agreed that on occasion she had worked more than five and a half hours per week, and she had worked 15 hours per week for a period of time from February 2023 to April 2023[16] when the elder child was experiencing relative stability with his mental health;

(bb) When advertisements of properties for sale[17] were put to her, she agreed there was other property for sale for less than the price she paid for her new home, but she said they were not suitable for her and the children;

(cc) She agreed that purchasing a house was a priority at all costs;

(dd) She had considered undertaking tutoring of students to supplement her income, but after investigation it was not viable because of the costs she would have to incur to operate;

(ee) She agreed that she needs to work to support herself and that she could do other work during school holidays;

(ff) She stated she had total and permanent disability cover as part of her account with her superannuation find, but she is not eligible to claim it given her current prognosis. She agreed that her superannuation account also has income protection, but she has not actually made an application for any such payments and her enquiries with her superannuation fund indicate that due to her work status prior to her diagnosis she may not be eligible;

(gg) She agreed that in July 2024, she enquired about withdrawing $10,000 from her superannuation on hardship grounds, but she was ineligible to receive it;

(hh) She said that she had not sought advice from a financial planner since her cancer diagnosis and agreed she should make enquiries with the superannuation fund as to what benefits for which she may be eligible or what money she can withdraw; and

(ii) As she had received a superannuation split pursuant to the final property orders made on 19 January 2024, the balance of her superannuation was $294,000. When asked if she would consider withdrawing any funds from her superannuation account, she said she should not have to do so as that money is for her retirement.

1. The applicant was asked about her financial situation at the time of filing her application in August 2024 by reference to her Financial Statement filed 16 August 2024. She agreed that she had been receiving $500 per week from the mortgage redraw and, had she been working the two days a week as she had done previously, she would have had a further $335 per week in income.
2. Counsel for the respondent put to the applicant that her income of $899 per week[18] and expenditure of $836 per week[19] in August 2024 left a surplus. The applicant disputed that she had a surplus as it is difficult to dissect what from the total of Part N is for her or for the children. She maintained that the total is an accurate reflection of the household's necessary expenses at that time.
3. In respect of her medical expenditure, the applicant deposed that she has reached the Medicare Safety Net threshold for 2025. Counsel for the respondent put to the applicant documents showing her Medicare and health insurance claim history along with her bank transaction history,[20] and she agreed that she received some rebates from Medicare and her private health insurer for medical fees. She conceded that that these rebates are not reflected in any of her calculations and that she has not reckoned the total she has paid out-of-pocket.

1. The respondent relied on his affidavits filed 14 April 2025 and 23 May 2025, which outline his evidence in chief about income and expenditure.
2. In summary, the evidence was:

(a) He is employed as a professional at P Company in City Q and, as at April and May 2025, his base salary is $2,830.57 per week. This equates to $147,587 per annum before tax;

(b) His 2024 taxable income was $159,278, which included a performance-based Annual Incentive Program bonus ("AIP bonus") of $16,649 paid in December 2023;

(c) The AIP bonus is not a guaranteed source of income and depends on the company's financial performance, the local business unit's results, and individual performance;

(d) Due to P Company's significant financial difficulties in 2025, including production curtailments and reported losses, he does not expect to receive any AIP bonus this year or in the foreseeable future;

(e) He has previously had years of higher income, particularly when working in remote and hazardous locations overseas, but he has no intention of returning to international work;

(f) He also received a redundancy payment and other entitlements in earlier years, but these are not recurring sources of income;

(g) He is inferred to be in reasonable health, although he has a back condition and may require surgery. He has also had investigations relating to his heart and may require ongoing treatment for the same; and

(h) He does not receive any other regular income.

1. The evidence in chief about the respondent's expenditure is set out at [55] of his affidavit filed 14 April 2025 as follows:

Telephone (the younger child/the elder child/the respondent/repairs)

Medical, dental and optical (not including health insurance premiums)

Education expenses, including fees and levies (includes 50 per cent of the younger child's tuition)

1. In addition to personal expenses, the respondent says he pays child support of $334.85 per week which will continue until the youngest child completes Year 12 in December 2027.
2. The respondent also states he has incurred legal fees of $21,208 as at May 2025 in responding to the SMA and is expected to incur another $19,000 in legal fees. Further, he says that he has a mortgage liability of $385,000 relating to the purchase of a new property following the making of the final property orders. He also pays half the younger child's private school fees.
3. When cross-examined, the respondent's evidence in substance was as follows:

(a) He has been employed by P Company in City Q since 2021. He did not agree that he was overqualified for the role he holds, but conceded that he could earn more in a different role in a different industry;

(b) His speciality is in primary industry, but he is not currently working in that field as there are no positions available in Tasmania. He does not intend to pursue job opportunities elsewhere in Australia or overseas, and stated that he has purchased a house in Tasmania;

(c) He has applied for other jobs, but he has not received any offers. He now intends to remain in his current employment until retirement;

(d) He agreed that during the relationship he was motivated to pay down the mortgage and pursue contracts overseas and interstate which allowed him to do this, but that he is not interested in such opportunities now;

(e) When the applicant asked him why he did not use his share of the property settlement to purchase a property which did not require him to take out a mortgage, he said that he wanted to purchase a house on a large block, which is near both his workplace and where the applicant was living. His current property is in a price range that he could afford, he can meet the repayments from his income, and he intends to pay off the mortgage by the time he retires;

(f) He agreed that he borrowed more money than required to meet the purchase price of his current home, and further stated that it was to address issues with the driveway and to undertake renovations. When the applicant questioned the necessity of this expenditure, he said that it has made the property "more usable";

(g) He agreed that he was asked by the applicant to provide a letter from his bank about his maximum borrowing capacity, but he did not do so because he knows he cannot borrow any further funds;

(h) He agreed that he is not opposed to alternative medical therapies;

(i) He said that he usually leaves for work at around 7:00am and returns home by 3:30pm to 4:00pm. He agreed that for the period from February 2023 to September 2024 he would regularly be outside the home for 11 hours, although he added that the elder child would sleep until around 11:00am and so was only awake and unsupervised for four hours;

(j) There were periods after separation where he did not object to the applicant taking unpaid leave, however he disagreed that all the leave she took was necessary to care for the elder child; and

(k) He agreed that he has not attended paediatrician appointments with the elder child from February 2022 until August 2024, but added that his involvement was not welcomed by the applicant.

1. The respondent contends that the SMA was filed outside of the 12 months required by s 44(2) of the Act and that leave is required for it to proceed. In his submission, leave should not be granted.[21]
2. The Court is required to decide if the applicant requires leave pursuant to s 44(3) of the Act to pursue her SMA and, if so, should it be granted because in the circumstances of these proceedings the requirements of s 44(4) of the Act are satisfied.

Is leave to proceed with the application required?

1. There is no dispute that the SMA was filed more than 12 months after the parties' divorce. I accept that the SMA was filed on 16 August 2024, being 16 months after the parties' divorce was finalised. I also agree that the form of order sought by the applicant has varied or changed since the application was originally filed, but nothing turns on this in my view because parties may file amended pleadings. It is clear that the applicant proceeded at the hearing on the basis of the Amended Application filed 3 February 2025, which she confirmed at the case management hearing on 28 February 2025. The respondent had ample notice of this amended application.
2. However, that does not resolve whether leave is required pursuant to s 44(3) of the Act because the applicant had previously applied for spousal maintenance.
3. The respondent has made extensive written submissions relevant to the question of leave, and the principles to which he refers are not controversial. In particular, that the Court has discretion to grant leave to proceed out of time, and whether it gives leave requires satisfaction that the party seeking spousal maintenance would suffer hardship in the absence of a grant of leave.[22]
4. The applicant maintained that previous orders for spousal maintenance had been made between the parties, and that authority established that the 12-month time limit does not apply because her application is to vary or renew an order for spousal maintenance previously made in proceedings.[23]
5. Namely, that based on the statutory interpretation of "matrimonial cause" in s 4 of the Act, if there is no spousal maintenance order in force and there has been a spousal maintenance order made in the past in favour of that spouse or former spouse, that spouse or former spouse may bring a fresh claim for spousal maintenance at any time pursuant to s 74 of the Act.[24]
6. The applicant's argument relies on an order in favour of the applicant against the respondent. In particular, on 13 April 2022 Fitzgerald SJR ("the SJR") made the following order:
   1. That from the 25th of November 2021 until there is a final adjustment of property interests between the parties either by consent or final hearing, [the applicant] shall receive interim weekly spousal maintenance of $374 per week as follows:

a) The lump sum of $2,000 which was paid to the [applicant] on the 25th of November 2021 from monies held in the FitzGerald and Browne Trust account at the rate of $374 until that $2,000 is exhausted, i.e. until the 30th of December 2021 when the final balance of that $2,000 is $130 and will form part of the weekly amount due to the wife of $374 on the 30th of December 2021 and the balance of that sum of $244 shall be paid from further trust monies (held by FitzGerald and Browne Lawyers in the total sum of $2,538) and; > > b) The balance then available from the additional trust monies being the sum of $2,294 be paid on a regular weekly basis to the wife in the amount of $374 per week up until the 17th of February 2022 (when the balance amount of those additional trust funds will be $50) and the balance amount due to the [applicant] on the 17th of February 2022 of $324 shall be paid from the parties National Australia Bank (NAB) redraw facility; and > > c) On and from the 24th of February 2022 $374 per week shall be paid to the [applicant] from the parties' NAB redraw facility.

1. These orders were varied by order of Hoult SJR on 27 January 2023 in the following terms:
   1. Order 1(c) of the Orders dated 13 April 2022 be varied to read:

"On and from the 24th of February 2022 $500 per week shall be paid to the [applicant] from the parties' NAB redraw facility."

1. The payments referred to in the above orders variously were to be paid from the respondent's solicitors' trust account and then from the parties' NAB redraw facility after 17 February 2022.
2. By [109] of his written submissions, the respondent says that all previous property and spousal maintenance orders were discharged subject to Order 14 of the final property orders ("Order 14"). Further, at [111] of his written submissions, he submits that Order 14 is a property settlement order, not a spousal maintenance order.
3. The force and substance of the submission referred to at [57] of these reasons must mean that subject to Order 14, there was no spousal maintenance order in force once the final property orders were made.
4. If Order 14 is a property order as the respondent contends and if the previous order or orders made for payments by SJR Fitzgerald or Hoult were for spousal maintenance then leave is not required as I am bound to follow the authorities referred to at [52] of these reasons.
5. The parties' contentions demonstrate a clear dispute about how the payments pursuant to previous interim orders made by SJR Fitzgerald and Hoult ought to be categorised.
6. I consider that the interim order made by the SJR was an interim spousal maintenance order made against the respondent for the benefit of the applicant for the following reasons:

(a) The terms of the SJR's orders describe the payments to be made to the applicant as spousal maintenance and the order of Hoult SJR plainly varied that order expressed to be a spousal maintenance order;

(b) The order contemplated regular periodic payments to the applicant that were not for child support;

(c) Although the payments were made from joint funds in trust or from joint capital in the form of available funds from a joint redraw facility, the orders were never determined to be a partial property settlement. In effect, the respondent waived any claim or entitlement to have the periodic payments classified as a partial property settlement;[25] and

(d) To the extent that the payments reduced net equity that otherwise would have been available for adjustment in the final property orders, they were funds that would in part have increased the distribution to the respondent pursuant to the final orders that were made and there were otherwise no orders restraining the use to which the redraw funds could be applied by either party.

1. The authorities clearly establish that the sources from which spousal maintenance can be paid are not limited to cash assets, and can include mortgage redraw facilities or even new loans if necessary.[26] Although the authorities largely deal with payment capacity from redraw facilities in the sole name of the party against whom the payment is ordered, they do not detract from the conclusion at [61] of these reasons or stand contrary to that finding.
2. As the SMA seeks to revive a previous spousal maintenance order either in whole or part, and because the respondent contends that Order 14 is a property order, the applicant does not require leave to proceed with her application. Had the respondent conceded that the terms of

Order 14 was a spousal maintenance order for a fixed period and that order had not expired when the applicant made the SMA, her application may have been an abuse of process and premature because she was still in receipt of $500 per week pursuant to that order. 3. If I am wrong and there has never been a spousal maintenance order made in the past, I am satisfied that the Court should exercise its discretion and grant leave for the SMA to be heard and determined out of time for the reasons that follow. 4. Although the wife had an expectation of receiving somewhat in excess of $1.2 million by way of property settlement and equalisation of superannuation, the fact remained that she would cease receiving $500 per week pursuant to the final orders once she received her share of the sale proceeds of the former matrimonial home. She needed to find a new home and was also helping the elder child who uncontroversially was presenting with considerable mental health and anti-social difficulty. These difficulties tended to be diminished by the way the applicant was cross-examined, which I find surprising given the respondent's own evidence and the fact that he too assisted with that child's needs. 5. Further, the evidence uncontroversially establishes that the applicant was diagnosed with cancer in December 2024/January 2025 and has undertaken extensive medical treatment for that condition since, including surgery in March 2025.[27] This diagnosis and treatment prima facie resulted in a degree of incapacity for work based on her unchallenged evidence about undergoing extensive tests, investigations and treatment, and experiencing stress or anxiety. 6. Accordingly, prima facie, I accept that her financial circumstances worsened as a result of no longer receiving $500 per week and becoming incapacitated for work. Prima facie, there is a reasonable claim to be heard. If leave were not granted in such circumstances, it is foreseeable that there would be appreciable burden and detriment to the applicant at least for some period of time. I am satisfied leave should be granted to proceed with the application. 7. I have considered the respondent's written submissions at [24] to [39] and the authorities cited therein, and they do not detract from the conclusion at [67] of these reasons.

1. Sections 72 to 75 of the Family Law Act 1975 (Cth) ("the Act") govern the liability of a party to a marriage to pay spousal maintenance. Whether an order should be made for the payment of spousal maintenance involves the Court making a discretionary determination, based on the considerations in s 72 of the Act.
2. Sections 72 of the Act states as follows:

(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

1. The relevant matters referred to in s 75(2) of the Act at the time of the hearing were as follows:

(2) The matters to be so taken into account are:

(a) the age and state of health of each of the parties; and

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain; and

(e) the responsibilities of either party to support any other person; and

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party's role as a parent; and

(m) if either party is cohabiting with another person - the financial circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party; and

(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i) a party to the marriage; or

(ii) a person who is a party to a de facto relationship with a party to the marriage; or

(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p) the terms of any financial agreement that is binding on the parties to the marriage; and

(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. There are established principles in relation to the application of the above legislative provisions and a four-stage approach has been consistently applied as discussed in Saxena v Saxena (2006) FLC 93-268.[28] The four-step approach requires the Court to answer the following questions:
   • Can the applicant support themself adequately?
   • If not, what are the applicant's reasonable needs?
   • What capacity does the respondent have to meet those needs?
   • What order is reasonable having regard to s 75(2) of the Act?
2. In Barajas & Frye [2023] FedCFamC1F 1024, McGuire J considered that the first question involved a requirement for the applicant to satisfy a threshold. He stated, citing Hall & Hall [2016] FamCAFC 68; (2016) FLC 93-703 and Plongeon & Plongeon [2007] FMCAfam 456:
   1. Consequently, the authorities identify that an applicant for spousal maintenance carries an onus to cross a "threshold" at s 72(1)(a) - (b) by proving on the balance of probabilities that there are needs to be met and, secondly, that the applicant is not able to attend to those needs. It is then, and only then, that the Court turns to consider the ability of the respondent to contribute to the needs of the applicant.

1. There was no dispute about the following facts and I find accordingly:

(a) The applicant is 55 years of age and is employed as an educator;

(b) The respondent is 57 years of age and is a professional who has historically worked full-time;

(c) The applicant and respondent were in a long marriage between 2003 and 2021, and their divorce was finalised in early 2022. They have two children of the marriage, the elder child now aged 19 years and the younger child now aged 16 years;

(d) During the marriage, the parties adopted traditional roles with the respondent working as a professional, sometimes overseas, and the applicant being the homemaker/carer and working limited hours;

(e) After the final property orders were made in January 2024, the former matrimonial home was sold, with the sale completing in September 2024;

(f) The applicant received $1,208,000 pursuant to the final property orders from which she purchased a new property at Town S in October 2024 for $1,030,000;

(g) In December 2024, the respondent completed the purchase of his new property at Suburb R; and

(h) In late 2024 the applicant underwent medical investigations, and in early 2025 she was diagnosed with cancer. She has since undergone treatment for that condition.

Preliminary observations about the applicant's case

1. The applicant's written submissions at times conflate issues that related to the finalised property adjustment proceedings and the extant SMA which the Court must determine.[29] Where the submissions relate to grievances or allegations about the property proceedings, including alleged failures on the part of the respondent to fully disclose income or resources during those proceedings or complaint about previous lawyers, they are not relevant to whether she has established an entitlement to spousal maintenance on the present application which the Court must determine. This is not to say that the outcome of the property settlement is entirely irrelevant to the merit of the claim for spouse maintenance for the reasons discussed in authorities such as Clauson & Clauson [1995] FamCA 10; (1995) 18 Fam LR 693 and Line & Line [1996] FamCA 145; (1997) FLC 92-729. In particular, the fruits of a property settlement may mean that a party is not entitled to spousal maintenance because they receive property and resources that enable them to adequately support themselves into the future.
2. The applicant has made various complaints which appear to allege the Court failed to afford procedural fairness to her during these proceedings. It is not the role of a primary judge to determine whether rulings and determinations they have made were procedurally fair or not. Regardless, it is impossible to distil how any alleged lack of procedural fairness is relevant to the merits of her claim for spousal maintenance. In respect of the applicant's written submissions at [155] and following, the Court made rulings and gave contemporaneous reasons for the orders made and ultimately conducted a final hearing at which the applicant was cross-examined and at which she cross-examined the respondent. The Court permitted closing submissions to be made in writing and afforded a reasonable opportunity to the applicant to make those.
3. Many of the applicant's submissions focus on allegations of disparity between the financial position of the respondent as compared to her own after the final property orders were made by consent. They misconceive what an applicant to spousal maintenance must demonstrate to succeed in obtaining an order for maintenance, which is addressed at [69] to [73] of these reasons. To the extent that the applicant relies upon a disparity in financial position due to the result of the final orders, I consider the submissions are misguided because she in fact received 60 per cent of the non-superannuation assets and equalisation of superannuation.

Findings relevant to whether applicant is able to support herself adequately

Income and earning capacity of the applicant?

1. The evidence establishes and I find that the applicant's weekly income has varied since making the SMA. According to her Financial Statement filed 23 December 2024, her average weekly income at that time was deposed to be $873 made up of:

1. At the time of filing her subsequent Financial Statement on 16 May 2025, the applicant deposes her income to be a total of $689 per week made up of $355 Centrelink benefits and $334 child support and no wages, and I find accordingly. Her lack of income from wages at this time is consistent with other evidence that the applicant was not working due to undergoing cancer investigation and treatment.
2. The respondent strongly challenged the applicant about her failure to exercise earning capacity during the period since filing the SMA. However, while the applicant is plainly intelligent, articulate and well-presented as a potential employee, I find that she is a 55-year-old female with no recent formal qualifications. She has worked in the recent past as an educator and during the marriage she worked in part-time roles, which is consistent with her role as the primary carer and homemaker.
3. The respondent did not cross-examine the applicant about her capacity to work in different roles or with a different employer, and instead only asserts that the applicant could work more than 11 hours a week.[30] Although the respondent's Counsel cross-examined the applicant about undertaking private work, she stated that upon exploring this option it had proved unviable due to the costs of insurance and establishing sufficient clients. I consider that the most likely prospect of her deriving income in the future is with her present employer given her health, age and past experience.
4. I find that her long-term employer was unwilling or unable to offer additional duties or hours in 2024 before the applicant was diagnosed with cancer for reasons that cannot be precisely discerned. However, the amount of leave and unpaid absences the applicant has taken has likely contributed. Despite this, I am satisfied the applicant reasonably exercised her earning capacity in the second half of 2024.
5. The respondent has not adduced any evidence of available positions in the greater City Q area for which the applicant would otherwise be suited to apply. The respondent's case relied on subpoenaed material to contend that the applicant was and is able to work more hours as an educator with her current employer either at her current school or at another school. On the basis of the reasoning from [78] and following, particularly the hours which the applicant historically has worked and allowing for some additional hours with her present employer at times, the Court finds that, providing she is healthy, she has capacity to earn wages as an educator of at least $400 gross per week and up to $1,000 gross per week if she takes up additional hours such as when it was available to her in 2023.[31]
6. The applicant contended that it was necessary for her to be present and responding to the elder child's mental health difficulties during 2024, meaning this was in part why she could not undertake her usual employment. While I accept that she felt a moral obligation to be available to the elder child, for the reasons that follow, it appears she was managing financially due to receipt of funds pursuant to the final property orders and chose not to work at various times. Accordingly, between cessation of the $500 per week payable to her pursuant to the final property orders and her cancer diagnosis, she has not demonstrated a need for support.
7. I find that the applicant was incapacitated for work during the period from December 2024 to May 2025 due to being diagnosed, investigated, and treated for cancer. I reject the respondent's submission that the applicant could have worked in her usual part-time role during this period. I accept the applicant's evidence and the relevant part of Associate Professor L's opinion[32] and am I satisfied that the distress, angst, investigations, treatment and appointment commitments rendered it unreasonable and impractical for her to work as an educator, a role that exists to support students who need additional support.
8. I reject the submissions that the applicant will have greater capacity to earn in the immediately foreseeable future, because the evidence establishes that she will likely require future monitoring and additional surgery which will interrupt her availability for work and impact on her employer's perception of her reliability and employability. However, given that Associate Professor L has assessed her prognosis as good with appropriate treatment,[33] it is likely that the applicant will have capacity to work between 20 to 30 hours per week in the future after completing her treatment.
9. The respondent has somewhat successfully challenged the applicant's evidence about her income and earning capacity. Although the applicant had in the past sometimes worked up to 30 hours per week, given her unreliability and work absences, I am satisfied that she was unable to secure those additional hours with her employer prior to being diagnosed with cancer. Accordingly, I find that her income and capacity to earn from wages was approximately $400 per week between the date of making the SMA and December 2024. In total, her income was approximately $735 per week including child support but ignoring any entitlement to Centrelink benefit.[34] When incapacitated between December 2024 and the hearing, her income was approximately $335 per week being the amount of child support received and ignoring her entitlement to Centrelink benefit.[35] These figures do not strictly mathematically account for income tax payable on wage income, but this has no material impact on the weekly amounts as income tax payable by the applicant is exceptionally minimal due to the tax-free threshold and what is disclosed in the applicant's Financial Statement filed 23 December 2024.

1. I find that the applicant owns the following property with a total estimated value of $1,250,000 rounded, based on her unchallenged evidence contained in her Financial Statement filed 16 May 2025:
   • A primary residence at Town S in Tasmania with an estimated value of $1,030,000[36] as it was purchased for that sum after the final property orders were made;
   • A one-third interest in a shack at Town T in Tasmania ("the shack"), with an estimated value of $193,000,[37] although her interest could likely only be realised if one of the other owners agreed to purchase her interest or agreed to sell. The applicant would probably be unable to borrow against her interest in this property without consent from the other owners;
   • A vehicle valued at $15,500;[38] and
   • Household contents and other personal property with estimated value of $18,650.[39]
2. The respondent criticised the applicant for expending what she did to purchase a residence for herself. He submitted that she ought to have purchased a more modest home for less than she did because she ought to have known that she would need to support herself in the future. I find the criticism unjustified as there is scant evidence before the Court about what alternate properties were suitable and available to the purchase around the time of the sale of the former matrimonial home. Notably, those represented in Exhibit R3 were sold in the first half of 2024 and others from May 2025. There are limited searches relating to property available at the time which the applicant purchased her new residence in September/October 2024 which are comparable to the accommodation the family had previously enjoyed. It is also relevant that the respondent spent an amount not radically different when he acquired his new residence. Finally, the suggestion that the applicant should have rented until a less costly property became available is rejected as it simply would have delayed purchase of a permanent home and dissipated the available funds for a purchase.
3. The applicant has financial resources at her potential disposal, being superannuation totalling $294,293. However, there is no persuasive evidence that she could access this to meet her day-to-day needs and medical expenditure. Rather, the undisturbed evidence is that the applicant had been told by the super fund she was not eligible for early release of some of these funds. In any event, given the comparative ages of the parties and disparity in their future work capacity, I agree with the submission that the applicant should not need to draw on her superannuation to support herself now.
4. Exhibit R4 demonstrates that the applicant has death, total permanent disability, and income protection insurance as part of her superannuation package with the super fund. Her evidence about whether she was eligible to receive income protection payments or disability payments was that she only became aware of the potential entitlements after the respondent's solicitor requested a product disclosure statement in respect of her super fund. Based on the evidence, I find that the applicant can apply for income protection payments in view of her incapacity due to the cancer diagnosis and has not yet done so. I am unable to make a finding about whether she would be eligible for income protection payments or, if so, what amount she would receive. However, I am satisfied that the applicant has failed to enquire with her super fund or a financial advisor as to her potential entitlements. She may have income protection payments available to her, which would constitute a resource if she is eligible to receive them.
5. I find that the applicant borrowed funds from her mother on two occasions. First in around October 2024 when the applicant was purchasing her current home, which she then repaid on an unknown date before January 2025.[40] The applicant then borrowed $100,000 from her mother in January 2025,[41] of which she said during cross-examination that she still had $57,088 in her bank account. The respondent contends that the borrowed funds and amount in her bank account are a resource available to the applicant which enables her to support herself.[42]
6. The respondent maintains and stated he would continue to maintain the policy with the private health insurer for the family. I am satisfied that it is in the interest of justice and for the avoidance of future proceedings that this is made as a formal order as sought by the applicant, and I will make such order. Accordingly, I am satisfied that the applicant has the right to receive rebates from the private health insurance in respect of medical and allied health expenses. The applicant also receives Medicare rebates in respect of the same.[43]

1. The findings about the applicant's reasonable and necessary expenses can be addressed in two parts, being:
   • Regular periodic expenses; and
   • Specific expenses related to her cancer diagnosis and treatment since late 2024.
2. In her Financial Statement filed 16 May 2025, the applicant deposes to total Part N expenditure of $1,975 per week and Part G personal expenditure of $185 per week. At 23 December 2024, the applicant deposes her Part N expenditure to be $1,596 per week and Part G personal expenditure to be $196 per week.
3. The respondent has submitted that some expenses claimed by the applicant are not accurate or reasonably necessary but there was limited challenge to the applicant's deposed figures during cross-examination.[44]
4. With respect to Part G expenditure, the respondent submitted that the cost of the premium payable for the applicant's life insurance cover should be disallowed. [45] The applicant conceded in cross-examination that she did not actually pay $9 per week as disclosed in each of her Financial Statements and this sum should be deducted from Part G expenses. Accordingly, I find that the applicant's Part G reasonable and necessary expenditure is about $182 per week, being the average of the claimed sums in her Financial Statement less the $9.
5. I accept that the applicant has likely exaggerated necessary Part N expenditure for her medical and pharmaceutical expenses because she has not recorded the rebates from either Medicare or the private health insurer. She stated many times during the hearing that she was waiting on information about rebates. Accordingly, I do not believe she has been deliberately untruthful, but she has not assisted the Court in its task. At the conclusion of the hearing, when directly asked about taking rebates into account to accurately identify the out-of-pocket expense for cancer-related treatment, she was unable to provide submissions about this. Further, in her written closing submissions the applicant does not address the issue meaningfully, other than stating the Court should give little weight to the calculations in the respondent's written closing submissions.
6. The applicant's necessary Part N expenses should be determined on the basis of her most recent evidence contained in the Financial Statement filed on 16 May 2025, but quarantining expenditure said to relate to medical, dental, optical and pharmaceutical expenses, given that they mostly relate to the applicant's cancer diagnosis and in my discretion should be subject to a separate finding given the state of the evidence before the Court.
7. I partly agree with the written submissions of the respondent filed 11 August 2025 at [59] relating to applicant's expenditure for holidays, gardening and mowing, and firewood for the shack. No corroborating evidence was adduced about these expenses (for example, receipts), but I reasonably infer that the applicant requires some paid assistance around her property due to her health. However, I agree that expenditure on holidays and firewood for use at the shack is discretionary rather than necessary. In the case of the firewood, other members of the applicant's family likely can meet the cost of heating if it is necessary. Holiday expenditure is plainly discretionary.
8. Apart from expenditure relating to medical, dental, optical and pharmaceutical and allied health expenses, I find that the applicant's reasonable and necessary Part N expenditure since making the SMA and in the foreseeable future is about $1,171 per week, which disallows expenses for holidays and firewood for the shack, and discounts somewhat the expenses claimed for books, magazines, repairs to furnishings and appliances, and gifts as they too are discretionary to some extent. Further, in relation to the expense claimed for tithing, it is apparent on her evidence that she had not been paying tithing in the period up to late 2024. There is no evidence that tithing is an obligation to pay money which would be enforced. Although the applicant may consider it to be a moral obligation, I am satisfied that the payment of tithing is a discretionary expense, not a necessary one.
9. For clarity, I find that the necessary Part N expenses comprise of the following:

Other necessary commitments (including animal-related expenses, boat fuel/servicing, stationery supplies)

1. In addition to routine necessary expenses discussed above, the applicant also has incurred treatment-related expenses. The parties presented differing summaries of these expenses purporting to be based on the evidence before the Court, without clearly identifying that particular evidence. As the applicant conceded that her summary of expenditure for medical, pharmaceutical and other treatment expenses referred to at [26] and [27] of these reasons did not account for rebates paid by Medicare and the private health insurer, I do not accept that her average necessary expenditure for medical and allied treatment is as she claims in her evidence.[46]
2. The applicant had opportunity to respond with precision to the calculation of the value of the rebates asserted by the respondent as she was not required to file and serve her submissions until 21 August 2025, after the respondent was required to file and serve his submissions by 7 August 2025. She has failed to provide alternate calculations of her out-of-pocket medical expenditure by reference to the relevant exhibits before the Court.[47]
3. The respondent's written submissions at [67] to [70] make an effort to calculate the actual out-of-pocket expenditure of the applicant in relation to past treatment costs by reference to entries in the bank statements, rebate statements from the private health insurer, and Medicare claims history statements. They do not reference the receipts for treatment annexed to the applicant's affidavit.
4. Doing the best with the evidence before the Court it is not possible to be satisfied that the calculations presented by the respondent are entirely correct. For example, the total cost of treatment evidenced by the receipts annexed to the applicant's affidavit is lower than the figure calculated as the total cost by the respondent. The respondent contends that they are $25,529.15,[48] while the applicant says they are $19,900.[49] The table below drawn from the receipts provides the figure of $20,875.38:

1. The respondent submitted there was little supporting evidence for the expenditure on pharmaceuticals, and I infer supplements. However, Counsel for the respondent did not challenge the need for the pharmaceuticals or supplements or submit that they were unreasonable expenses. As the applicant gave evidence that the pharmaceuticals and supplements were either recommended or prescribed by her general practitioner, I accept that they were and will be reasonable and necessary expenses for treating her cancer.
2. Only by conducting a full accounting reconciliation would it be possible to accurately make a finding about the precise out-of-pocket expense the applicant has in fact paid for her treatment-related expenses. It is not the role of the Court to do this. It is a matter for expert evidence or summaries pursuant to s 50 of the Evidence Act 1995 (Cth), or otherwise for the parties to clearly make submissions based on the evidence before the Court. I respectfully agree with the views of Justice McGuire to this effect in Da Gama & Fabien [2025] FedCFamC1F 21.
3. Doing the best with the evidence before the Court, I am satisfied that the applicant's cancer-related treatment expenses for medical consultations, surgery, hospital and pathology have largely been subject to rebates from either Medicare or the private health insurer or both. Consequently, some allowance for out-of-pocket medical, pharmaceutical and supplement expenditure is to be made in assessing the applicant's past necessary expenses, but not to the extent she claims. Consequently, an allowance in the region of $160 per week for past out-of-pocket medical expenses is made for the purpose of in arriving at a conclusion about the applicant's past necessary weekly expenses.
4. The applicant criticises the methodology adopted by the respondent,[100] but the criticism is unfounded because:
   • It adopts a higher figure for past medical-related expenses than demonstrated by the receipts in evidence or the applicant's own evidence;
   • It relates to the past expenditure, not the future;
   • Ongoing costs beyond the hearing are addressed separately; and
   • The applicant's consent was not required for the calculations and the applicant ought to have presented her own calculations if she could demonstrate errors.
5. I accept that the applicant will incur significant medical expenses in the future to complete her treatment for cancer, including plastic surgery. While the applicant claims her future expenses will be $54,974.90 as referred to at [35] of these reasons, the respondent contends that it is unnecessary for the applicant to have the surgery performed by a private interstate surgeon.[101] As the applicant will have access to Medicare and private health rebates in the future, the actual out-of-pocket expense to her for future treatments will be considerably less, but I am unable on the evidence to attribute a specific figure to the future cost. Nonetheless, I am satisfied that there will be necessary future costs incurred for treatment by the applicant.

HAS THE THRESHOLD TO ENTITLEMENT TO SPOUSE MAINTENANCE BEEN MET?

1. Based on the foregoing findings, the applicant's necessary expenses likely exceeded her income once the payments to her pursuant to Order 14 of the final orders ceased, both before and after the applicant received the cancer diagnosis.
2. However, the applicant repaid the $100,000 borrowed from her mother sometime after October 2024 and did not reborrow it until January 2025. I infer from these facts that the applicant had a surplus of somewhat more than $100,000 after she completed the purchase of her new home, from which she repaid her mother and likely largely supported herself. This inference is open because the applicant has only disclosed minimal discretionary and necessary liabilities in her Financial Statement filed 23 December 2024, even though during this period she had ceased receiving $500 per week from the respondent pursuant to the final orders.
3. Soon after swearing her Financial Statement filed 23 December 2024, the applicant then reborrowed $100,000 from her mother in January 2025. At the time of the hearing on 30 May 2025, she still had close to $57,000 in a bank account. She had not disclosed the $57,000 in her Financial Statement filed 16 May 2025, but did disclose those funds in her affidavit filed 15 May 2025.[102]
4. The fact of the borrowing is demonstrative of the applicant's need for support, particularly to meet medical expenses, as from December 2024/January 2025 the applicant was unable to work and derive her usual wages and had incurred unforeseen treatment costs due to her cancer diagnosis. This is also demonstrated by the increase of income shortfall over expenditure referred to at [78] and [102] of these reasons.
5. The shortfall between her necessary expenses and income has since been met from the applicant's borrowing from her mother. The respondent did not submit that the loan agreement signed on 15 January 2025[103] was a sham and he did not submit that the sum of $100,000 advanced at that time was a gift.
6. Instead, the respondent contends that the loan from the applicant's mother is a resource which has been applied to fully satisfy her need for support, meaning that the applicant has not satisfied the threshold level to warrant an order for spousal maintenance being made.
7. The circumstances of this case raise a challenging issue. Namely, whether a party has met the threshold discussed in the authorities referred to at [73] of these reasons, in circumstances where they are unable to support themselves due to events that were not foreseen at the time of finalising property proceedings, and their immediate need is met by a family member having capacity to lend money to them.
8. To my mind the issue can only be resolved on a case-by-case basis and is fact-dependent. At the time the applicant expended $1,030,000 on her new home, she could not have foreseen being unable to work due to a serious cancer diagnosis. Indeed, her evidence was that she intended to pick up additional work or do other work, from which I am satisfied she would have likely had the means to support herself despite having filed the SMA.
9. Once diagnosed with cancer, it is inconceivable that she could have borrowed money from a commercial, arm's length lender to meet her additional expenses. It was only by virtue of fortune of her mother's means and benevolence that she has been able to obtain lending from her to meet her past medical treatment and has surplus funds to meet future surgery and other medical expenses referred to at [26], [33], and [35] of these reasons.
10. In my view, luck and the receipt of benevolence or generosity of family does not of itself or alone disqualify a party from demonstrating that they have satisfied the threshold requirement of showing that they have a need for support. However, it is relevant and is to be taken into account when determining what order for spousal maintenance should be made.
11. I have considered many authorities that consider what can be regarded as a resource and, although I accept that the ability to borrow to meet expenses is recognised as a resource that may disqualify meeting the threshold, it is relevant that I have been unable to find any case:

(a) With facts similar to those before me; and

(b) That address the circumstances of borrowing from a family member, rather than borrow on a commercial basis where the party seeking support has borrowing capacity because of their income.

1. In the applicant's case, there is no evidence that she could borrow on a commercial basis, and her income and earnings are exceptionally modest at present due to her diagnosis and treatment.
2. The view at [121] of these reasons does not necessarily mean that the orders as sought by the applicant should be made. I turn to consider whether the respondent has capacity to contribute to the applicant's support.

Findings relevant to whether the respondent has capacity to contribute to applicant's support

1. I do not accept the submission of the applicant that the respondent has inconsistently reported his income.[104] There is a difference between taxable income, gross income and, more relevantly, net income. It is the last of these which informs what disposable income the respondent has which may give capacity to pay spouse maintenance.
2. The applicant maintains that the respondent regularly receives bonus income. I find that the AIP bonus is not a guaranteed payment, but it has been regularly received for four years.[105] While the respondent suggests that the financial viability of his employer is questionable, on the basis that past experience informs the likelihood of occurrences in the future, I am persuaded that the respondent will continue to earn income similar to that which he has earned in recent years, either with his current employer or an alternate employer given his qualifications and extensive experience, even within Tasmania.[106]
3. I reject the applicant's submissions to the effect that the respondent has not exercised his earning capacity to its fullest.[107] While in the past when he was younger, the respondent earned significantly higher income than he presently does, it is unreasonable to expect that he should continue to work overseas, interstate or seek out positions that earn greater income. In Shaw & Shaw [1989] FamCA 29; (1989) FLC 92-030 at 77,428, the appeal court agreed with the trial judge's statement that in respect of assessing a party's earning capacity:

... it is unrealistic to expect [a party] to go overseas to obtain employment...

1. This is especially so as he is now 57 years old, it is after the property adjustment proceedings have been finalised, and one child is now an adult.
2. Based on the evidence before the Court, I find that the respondent's income is likely to be in the region of $150,000 to $160,000 gross and his earning capacity is likely to remain as such in the future even if he is required to find alternate employment as a professional in Tasmania.
3. The only evidence before the Court about income tax paid or payable by the respondent is contained in his Financial Statement filed 14 April 2025, which identifies at Item 19 of Part G that he pays $727 per week. Accordingly, assessing the respondent's average annual income to be $155,000 gross or being $2,980 per week and after allowing an estimated $740 per week for income tax, I find that the respondent's weekly net income and likely earning capacity is $2,240.
4. The applicant did not challenge the respondent's Part G expenses set out in the respondent's Financial Statement filed 14 April 2025, except Items 20 and 23. Accordingly, I accept that the following are necessary weekly expenses of the respondent:

1. I do not allow as an expense the sum of $325.50 referred to at Item 20 of Part G of the respondent's Financial Statement filed 14 April 2025 as it is plainly not a sum paid by the respondent himself from his net income. Rather, it is a superannuation guarantee payment which his employer is obliged to pay to his superannuation fund in addition to his gross salary.
2. I accept the submission by the applicant that the additional mortgage repayment of $334.92 referred to in the respondent's Financial Statement filed 14 April 2025 at Item 23 in Part G is optional or discretionary. As the respondent has no legal obligation to pay the additional repayment, it cannot logically be a necessary expense. Although he may prefer to repay the mortgage in full within 10 years, that is a matter of discretion rather than need.
3. The Court finds that the respondent also has reasonable and necessary Part N expenses that should be factored into determining whether he has capacity to pay spousal maintenance, but some of those claimed are discretionary.
4. The applicant has submitted that the respondent has included an inflated sum for out-of-pocket medical, dental and optical costs.[108] I accept that the amount claimed as out-of-pocket expenses is not typical of his usual expenses of this nature and this is borne out by his evidence during cross-examination relating to additional expenses for the elder child. These expenses are unlikely to be recurring and so I prefer the submission of the applicant that recurring future out-of-pocket medical, dental, and optical expenses should be allowed at significantly less than stated in the Financial Statement filed 14 April 2025 and I find they are likely to be approximately equivalent to the applicant's claim for these expenses before her cancer diagnosis, being about $40 per week.
5. The applicant also submits that the claim of $94.50 for education costs in Part N of the respondent's Financial Statement filed 14 April 2025 excessive and duplicated.[109] It is uncontroversial that the respondent pays his half of the younger child's private school fees from the redraw facility connected to his mortgage. They are not included in Part G of the respondent's financial statement, and I have disallowed the additional mortgage repayment in Part G of the respondent's Financial Statement as it is discretionary.[110] Accordingly, the inclusion of the school fees paid by the respondent as a Part N expense is not a duplication and should be allowed.
6. The applicant's written submissions at [90] to [91] further challenge the respondent's claimed expenses. Without addressing each and every submission, I observe that each party has identified their Part N expenses similarly if out-of-pocket medical and pharmaceutical expenses are quarantined. As the respondent is relatively healthy and is not incapacitated, I do not accept that $1,420 per week is reasonable and/or necessary and a recurring expense for the purposes of Part N expenditure. Allowing reduction for out-of-pocket medical, optical and dental,[111] and allowing some reductions for holidays, chemist and pharmaceuticals, and maintenance (noting that the respondent completed a renovation fairly recently), I find that his reasonable and necessary Part N expenses are about $1,082.08 per week as follows, which sum is comparable to the applicant's reasonable and necessary expenses putting aside her cancer related costs:

Other necessary commitments (including animal-related expenses, boat fuel/servicing, stationery supplies, tithing)

1. In summary, I find the respondent's reasonable and necessary weekly expenses are $2,136.60 per week made up of:

1. The respondent's Financial Statement filed 14 April 2025 concerning his property was not particularly challenged and I find has the following property:
   • His primary residence at Suburb R with an estimated value of $955,000;[112]
   • Modest savings of around $900;[113]
   • A vehicle valued at approximately $24,000;[114] and
   • Household contents and personal property of about $16,730.[115]
2. I also find that respondent has superannuation of $310,559.
3. The applicant submitted that the respondent has borrowing capacity, which is a financial resource. She submits that, contrary to the respondent's evidence, he has capacity to borrow funds from which he can pay spouse maintenance.[116]
4. There is established authority to the effect that the capacity to borrow is regarded as a financial resource from which a person may be ordered to pay spouse maintenance, depending on the circumstances of a case.[117]
5. The respondent has a weekly surplus of income over necessary expenses based on the findings at [130] and [138] of these reasons of $93. This modest surplus appears to be consistent with him being able to have saving in his bank accounts of $984 rounded at the time of filing his Financial Statement in April 2025.
6. The respondent also borrowed more than required to complete the purchase of his new property and has demonstrated a past capacity to borrow. He claimed to make additional repayments towards his mortgage, but he is not liable to make those, and if it is accepted he made those payments he must have had income above his regular wage income.
7. The respondent undertook some renovation/improvements to his property and other improvements are in progress. It is quite possible that his property will have greater value than that which he paid at the time of purchase.
8. The respondent also deposed that at the date of the hearing there was about $33,000 available to redraw from his mortgage account and that he had modest savings in his bank accounts of $984 rounded. That evidence was not specifically challenged, and I accept it. Even though the respondent plans to use these funds for other works around his home, those works are not what I regard to be necessary, albeit that they would make the property more comfortable to use.
9. Either because he has capacity to borrow funds or currently has funds available in his mortgage redraw facility, I consider that the respondent has resources at his disposal from which he could satisfy a spouse maintenance order.

1. I have concluded that the applicant has demonstrated a need for support from late December 2024 while incapacitated for work due to attending to her cancer diagnosis.
2. The respondent has a modest capacity to meet that need based on having a small surplus of income over necessary expenditure. Alternatively, he has funds in the redraw facility or is likely to be able to borrow from a commercial lender. I infer the latter because, when cross-examined about his failure to disclose information about borrowing capacity, the respondent was evasive and merely asserted that he did not need to provide information from a bank or lender because he knows he has borrowed to his capacity. This evidence was unimpressive.
3. Addressing the discretionary considerations pursuant to s 75 of the Act that inform the nature of the order to be made, I state as follows:
   • The applicant appeared to rely on family violence as a relevant consideration, but her submissions were unclear and she did not cross-examine the respondent about family violence. Accordingly, I place little weight on this consideration;
   • I have addressed the parties' ages and health elsewhere in these reasons and have taken it into account;
   • I have extensively addressed each parties' income, property, financial resources, and capacity for employment elsewhere in these reasons;
   • The fact that the applicant has more care of the younger child is relevant and I take it into account, including by finding that it was appropriate for the applicant to acquire the home she did in October 2024 and to meet half his school fees and other necessary expenses as identified in these reasons;
   • I take into account the findings relating to the commitments of each party to support themselves and the younger child as discussed at [94]-[111] and [125]-[138] of these reasons;
   • I have taken into account the property and resources of each of the parties as discussed in the findings at [88] to [93] and [139] to [147] of these reasons.
   • The applicant also received some Family Tax Benefit and Jobseeker payments from Centrelink, but I am required to disregard these pursuant to s 75(3) of the Act;
   • Noting the findings about the parties' superannuation interests, the respondent has a higher superannuation balance and will likely have superior entitlements upon retirement. I take this into account;
   • I take into account the parties' standard of living as it was before separation and am satisfied that the findings about their necessary expenses reflect a maintenance of a similar standard of living;
   • I take into account that a modest order for the payment of spouse maintenance by the respondent during a fixed period while the applicant recovers her health and returns to work will not impact on the respondent's capacity to meet his liabilities;
   • The applicant indirectly contributed to the income and earning capacity of the respondent by supporting his role as a breadwinner and by caring for the family and the home, limiting her capacity to undertake further education, qualifications and training, particularly during the period she has been diagnosed with and treated for cancer. I take this into account;
   • I have addressed the terms of the final property orders and have taken them into account in concluding that at the time they did not make provision in favour of the applicant for unforeseen cancer illness impairing her capacity to work and earn an income, but otherwise were made by consent and considered to be just and equitable at the time;
   • I take into account that the respondent pays assessed child support for the younger child, but it is unlikely to be sufficient to meet the actual cost of supporting him while he lives with the applicant. The applicant has limited means to contribute to the younger child's support, particularly as the parties agreed that he be privately educated. However, the parties will only be obliged to support the younger child until 2027; and
   • The maintenance and support of the elder child has been taken into account and I accept that both parties have made a contribution to this and it is a relevant factor that weighs to some degree in favour of each of the parties.[118] But the evidence does not permit me to be satisfied that it ought to weigh more heavily in favour of the applicant.
4. It is beyond the scope of established authority for the respondent to be expected or required to maintain or contribute to the maintenance of the applicant indefinitely, especially given the terms of the final property orders, the parties' ages, and the earning capacity of the applicant once her cancer treatment concludes.
5. Exercising my discretion, taking into account all the considerations referred to in these reasons, the respondent should pay spouse maintenance to the applicant for a fixed period at $300 per week from when she became incapacitated until the applicant can reasonably be expected to return to work given her remaining treatment and prognosis. This period allows what I consider to be a reasonable period for the applicant to complete her surgeries and treatment and then return to work for more than 11 hours per week. There is a reasonable expectation that she could then work as an educator for 20 to 30 hours per week either with her present employer or at another school if she applies her previously established capacity for work. Thereafter I consider that she should then be able to adequately support herself.
6. In arriving at this conclusion, I have also taken into account that the applicant is unlikely to come under real pressure to repay her mother, noting the evidence before the Court and referred to at [113]-[115] of these reasons. In any event, if the loan must be repaid in full by 31 December 2026 as per the terms of the loan agreement, I consider that the applicant, having returned to work after the conclusion of her medical treatment and owning an unencumbered property, could be expected to be able to obtain borrowings from a commercial lender for the balance owing.
7. Further, the applicant has not accounted for the rebates she has received from the private health insurer and Medicare, but could have or should have reasonably applied those to begin repaying the funds borrowed from her mother. In addition, the applicant will receive a lump sum for the past periodic maintenance the Court has determined she will receive, and this too can be applied to repaying the loan to her mother.
8. Although I have accepted that the applicant will have out-of-pocket future medical costs, as she will receive Medicare and private health rebates for these expenses and she has funds at hand in her bank account, I am not persuaded that there should be either a lump sum or periodic spouse maintenance order in respect of those expenses beyond the order referred to at [152] of these reasons.
9. Finally, addressing third order sought by the respondent referred to at [6] of these reasons for an injunctive order on the basis of the applicant being vexatious, I discern that the orders sought is one pursuant to s 102QB of the Act. The respondent's affidavit filed 14 April 2025 at [141] onwards contains the evidence upon which he relied for the injunctive order sought.
10. I am instructed by the decision in Rilak & Tsocas [2020] FamCA 49 which provides a comprehensive summary of the principles applicable to an order pursuant to s 102QB of the Act. Without repeating all of the principles, relevantly the Court is required to assess the merits of previous applications and the conduct in those to reach a level of satisfaction of vexatiousness. Further, as depriving a party from the right to pursue potential entitlements is a serious matter, the power in s102QB of the Act should be exercised sparingly and only if the applicant for the order has satisfied the onus.
11. The history of the proceedings between these parties and the outcomes of the proceedings, noting that the applicant has always been successful to some extent, does not meet the legal criteria for an order being made as sought by the respondent.
12. Although the Act now contains harmful proceedings provisions,[119] that is not the application that has been made. The Court has a degree of sympathy for the respondent and accepts that he has been required to incur legal costs, worn down, and experienced emotional distress, however I consider the applicant's conduct to be "persistent and over-zealous",[120] but not vexatious.
13. The written submissions on behalf of the respondent did not address in any meaningful way why the injunctive order should be made. The Court is not prepared to make the order. Nonetheless, the applicant has only succeeded on a limited basis and her claim for spousal maintenance was ambit and disproportionate to all relevant factors which inform the making of an order. Further, no doubt the principle of finality will bear heavily in any attempt by the applicant to seek further spousal maintenance, as will the limited basis upon which she succeeded in this instance, namely her incapacity to earn due to her cancer diagnosis which had not been previously foreseeable.
14. Furthermore, the harmful proceedings provisions of the Act may be relevant to any future proceedings and the Court always has power to make costs orders where claims are prosecuted without merit and do not succeed.

1. For the forgoing reasons, I make orders for the respondent to pay periodic spousal maintenance to the applicant in the sum of $300 per week for a fixed period, with the amount due between 27 December 2024 and the date of this judgment to be paid as a lump sum.

I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

[1] Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072; Alston & Alston [2021] FedCFamC1A 96 at [36].

[4] Financial Statement of the applicant filed 16 May 2025 at Part D.

[6] Affidavit of the applicant filed 15 May 2025 at [64] and Annexure 20.

[7] Affidavit of the applicant filed 15 May 2025 at [64] and Annexure 20.

[8] Affidavit of the applicant filed 15 May 2025 at [68].

[9] Affidavit of the applicant filed 15 May 2025 at [50].

[10] Affidavit of the applicant filed 15 May 2025 at p110.

[11] Affidavit of the applicant filed 15 May 2025 at p110.

[12] Affidavit of the applicant filed 15 May 2025 at [62].

[13] For example of cost, see Exhibit A7 at pp14-15.

[18] As set out in the Financial Statement of the applicant filed 16 August 2024 at Part D, but not including the money received from the respondent for child support.

[19] As set out in the Financial Statement of the applicant filed 16 August 2024, itemised at Part G and at the 'For You' column of Part N.

[20] Exhibit R5; Exhibit R6; Exhibit R7; Exhibit R8.

[21] Written Submission of the respondent filed 11 August 2025.

[22] Written submissions of the respondent filed 11 August 2025 at [23]-[40].

[23] Relying on Blevins & Blevins [2019] FCCA 1923; see the written submissions of the applicant filed 27 May 2025 at [45].

[24] Atkins & Hunt [2016] FamCAFC 230 at [60], followed in Blevins & Blevins [2019] FCCA 1923.

[25] Drysdale & Drysdale [2011] Fam CAFC 85 at [40], approved in Goncharova & Goncharov [2021] FamCA 559.

[26] Maroney and Maroney [2009] FamCAFC 45 at [56] as cited in Badir & Badir [2022] FedCFamC1A 109 at [29].

[27] Affidavit of the applicant filed 15 May 2025 at [60].

[28] Endorsed by the Full Court in Keymer & Keymer [2020] FamCAFC 70.

[29] For example, at [135]-[141], [160], [164] and [166].

[30] Written submissions of the respondent filed 11 August 2025 at [76].

[32] See the letter from Associate Professor L dated 18 April 2025, attached to the affidavit of the applicant filed 15 May 2025 at Annexure 11.

[33] See the letter from Associate Professor L dated 18 April 2025, attached to the affidavit of the applicant filed 15 May 2025 at Annexure 11 at p55.

[34] As provided by s 75(3) of the Act.

[36] Financial Statement of the applicant filed 16 May 2025 at Item 35 in Part I.

[37] Financial Statement of the applicant filed 16 May 2025 at Item 36 in Part I.

[38] Financial Statement of the applicant filed 16 May 2025 at Item 40 in Part I.

[39] Financial Statement of the applicant filed 16 May 2025 at Item 42 and Item 43 in Part I.

[40] Affidavit of the applicant filed 15 May 2025 at [84]-[86].

[41] Affidavit of the applicant filed 15 May 2025 at [86].

[42] Written submissions of the respondent filed 11 August 2025 at [54].

[44] Written submissions of the respondent filed 11 August 2025 at [58] to [74].

[45] Written submissions of the respondent filed 11 August 2025 at [58(a)] and footnote 31.

[46] Affidavit of the applicant filed 15 May 2025 at [60]-[75]; at [26] of these reasons.

[47] Exhibit R5, Exhibit R6, Exhibit R7, and Exhibit R8.

[48] Written submissions of the respondent filed 11 August 2025 at [69.1] to [71].

[50] Affidavit of the applicant filed 15 May 2025 at p107; Affidavit of the applicant filed 27 February 2025 at p26; Affidavit of the applicant filed 3February 2025 at p10; Exhibit A6 at p20.

[51] Affidavit of the applicant filed 15 May 2025 at p105; Affidavit of the applicant filed 27 February 2025 at pp 10 and 36.

[52] Affidavit of the applicant filed 15 May 2025 at p106; Affidavit of the applicant filed 27 February 2025 at p34.

[53] Affidavit of the applicant filed 27 February 2025 at p42.

[54] Affidavit of the applicant filed 27 February 2025 at p27.

[55] Affidavit of the applicant filed 23 December 2024 at p36, no receipt provided.

[56] Affidavit of the applicant filed 23 December 2024 at p21; Affidavit of the applicant filed 27 February 2025 at p28.

[57] Affidavit of the applicant filed 3 February 2025 at p12; Affidavit of the applicant filed 27 February 2025 at p38.

[58] Affidavit of the applicant filed 3 February 2025 at p17; Affidavit of the applicant filed 27 February 2025 at p33; Affidavit of the applicant filed 3 February 2025 at p17.

[59] Affidavit of the applicant filed 27 February 2025 at p43.

[60] Affidavit of the applicant filed 15 May 2025 at p91.

[61] Affidavit of the applicant filed 15 May 2025 at p90.

[62] Affidavit of the applicant filed 27 February 2025 at p29; Affidavit of the applicant filed 3 February 2025 at p15.

[63] Affidavit of the applicant filed 27 February 2025 at p41.

[64] Affidavit of the applicant filed 15 May 2025 at p96.

[65] Affidavit of the applicant filed 27 February 2025 at p45.

[66] Affidavit of the applicant filed 27 February 2025 at p47.

[67] Affidavit of the applicant filed 15 May 2025 at p98.

[68] Affidavit of the applicant filed 15 May 2025 at p103.

[69] Affidavit of the applicant filed 15 May 2025 at p93.

[70] Affidavit of the applicant filed 15 May 2025 at p92.

[71] Affidavit of the applicant filed 15 May 2025 at p104.

[72] Affidavit of the applicant filed 15 May 2025 at p94.

[73] Affidavit of the applicant filed 15 May 2025 at p97.

[74] Affidavit of the applicant filed 15 May 2025 at p100.

[75] Affidavit of the applicant filed 15 May 2025 at p101.

[76] Affidavit of the applicant filed 15 May 2025 at p102; Exhibit A7 at p15.

[78] Affidavit of the applicant filed 15 May 2025 at p108.

[79] Affidavit of the applicant filed 27 February 2025 at p35.

[80] Affidavit of the applicant filed 27 February 2025 at p44.

[81] Affidavit of the applicant filed 27 February 2025 at p46.

[82] Affidavit of the applicant filed 15 May 20252025 at p103.

[83] Affidavit of the applicant filed 15 May 20252025 at p99.

[84] Affidavit of the applicant filed 15 May 2025 at p92.

[85] Affidavit of the applicant filed 27 February 2025 at pp39-40; affidavit of the applicant filed 3 February 2025 at pp13-14.

[86] Affidavit of the applicant filed 27 February 2025 at 31.

[87] Affidavit of the applicant filed 15 May 2025 at p84.

[88] Affidavit of the applicant filed 15 May 2025 at unnumbered page, following p84.

[90] Affidavit of the applicant filed 23 December 2024 at p23; affidavit of the applicant filed 27 February 2025 at p24.

[91] Affidavit of the applicant filed 23 December 2024 at p22; affidavit of the applicant filed 27 February 2025 at p25.

[92] Affidavit of the applicant filed 3 February 2025 at p16; affidavit of the applicant filed 27 February 2025 at p30.

[93] Affidavit of the applicant filed 3 February 2025 at p18; affidavit of the applicant filed 27 February 2025 at p37; affidavit of the applicant filed 15 May 2025 at p83.

[94] Affidavit of the applicant filed 3 February 2025 at p12; affidavit of the applicant filed 27 February 2025 at p33.

[95] Affidavit of the applicant filed 15 May 2025 at p85.

[96] Affidavit of the applicant filed 15 May 2025 at p81.

[97] Affidavit of the applicant filed 15 May 2025 at p82.

[98] Affidavit of the applicant filed 15 May 2025 at p80.

[99] Affidavit of the applicant filed 15 May 2025 at p86.

[100] Written submissions of the applicant filed 21 August 2025 at [53]-[56].

[101] Written submissions of the respondent filed 11 August 2025 at [73].

[103] Affidavit of the applicant filed 15 May 2025 at Annexure 26.

[104] Written submissions of the applicant filed 27 May 2025 at [79].

[105] Affidavit of the respondent filed 14 April 2025 at [23].

[107] Written submissions of the applicant filed 27 May 2025 at [124]-[127].

[108] Written submissions of the applicant filed 27 May 2025 at [90(b)].

[109] Written submissions of the applicant filed 27 May 2025 at [90(c)].

[112] Financial Statement of the respondent filed 14 April 2025 at Item 35 in Part I.

[113] Financial Statement of the respondent filed 14 April 2025 at Item 37 in Part I.

[114] Financial Statement of the respondent filed 14 April 2025 at Item 40 in Part I.

[115] Financial Statement of the respondent filed 14 April 2025 at Item 42 and item 43 in Part I.

[116] Written submissions of the applicant filed 27 May 2025 at [105]-[128].

[117] Hall and Hall [1979] FamCA 50; (1979) FLC 90-679; In the Marriage of Crapp (No 2) [1979] FamCA 17; (1979) 5 Fam LR 47; In the marriage of Howard (1982) 8 Fam LR 441; Maroney & Maroney [2009] FamCAFC 45.

[118] See Palumbo v Mandel [2019] FamCAFC 228 from [56] onward, Lint & Lint [2011] FamCAFC 115, and D & D [2004] FMCAfam 154 in the context of property adjustment, but equally relevant to the interpretation of s 75(2) of the Act in spousal maintenance applications.

[120] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 as quoted in Pencious & Searle [2017] FamCAFC 210 at 75.