In the case of Padnall & Padnall [2014] FamCAFC 145 (14 August) Strickland J, exercising appellate jurisdiction, permitted the husband’s appeal against an order made by Simpson FM (as his Honour then was) that he be required to pay the wife (who had three children in her care) interim spousal maintenance of $1462 per week.  Simpson FM accepted at [16] the wife’s evidence that her $87,000 savings were to be set aside as a tertiary education fund for the children.

Strickland J said at [36]

“…There is no dispute between the parties that the intention was to use the money in this account to meet the costs of the children’s tertiary education, but that was when the parties were together. The circumstances have altered with the separation, and in the context of the wife seeking spousal maintenance from the husband, alleging that she cannot support herself adequately, it is not open to the court to disregard these funds. It is also inequitable to do so, given that once the enquiry turns to the husband’s financial circumstances, it is his income, his assets, and his resources which are required to be taken into account.”

Strickland J also detected a further error by the inclusion of the children’s expenses in fixing the amount of maintenance the wife needed despite a child support assessment being in place for the husband to pay $802 per week.

Strickland J at [51] said

“…[i]t was still necessary for the trial judge to carefully consider what (if any) costs of support of the children should be taken into account in assessing the needs of the wife. His Honour though did not do this; his Honour without any express consideration, took into account all of the expenses of the children in fixing the needs of the wife, and thus he has erred.”

At [52] Strickland further added

“As to the child support issue, there can be no question that his Honour has erred.  The [Family  Law] Act is clear; under s 72 (2)(na) the court must take into account “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” “