Reference no: EM133503139

Family law in NSW

FACT SCENARIO -

David (aged 46) and Joyce (aged 32) met when David was on holiday in Brazil in June 2019. David had only recently separated from his long term partner and finalised that separation by way of final Consent Orders the-then Family Court of Australia in Sydney.

Joyce is a Brazilian citizen and had been studying English at night, while working in a bar in Rio de Janeiro. She had always dreamed of moving to Sydney on a working visa. David lives in Sydney and owns a property in Paddington, which he has a mortgage over in his sole name. David is also a doctor, specialising in oncology at Royal Prince Alfred Hospital, and has built up a very successful practice.

David fell madly in love with Joyce, and suggested that she come back to Sydney with him almost immediately. Joyce's spoken English was okay, however her written English and ability to understand complicated documents was limited.

David and Joyce flew back to Sydney in March of 2020, just before the COVID-19 pandemic hit. When the international borders closed, Joyce remained living with David in his $3m Paddington property.

When Australia went into lockdowns, David was pressuring Joyce to remain living with him and not return to Brazil, because he could not bear to be alone again. Joyce was missing her family, but she loved David and agreed to stay.

David's best friend, Jonathan, is a family law accredited specialist. He spoke to David about his new relationship, and although he was very happy for him, cautioned that the longer Joyce remained living with him, that at 2 years she may claim de facto status in the event they separated.

David had already been through a messy breakup and did not want to endure that again, neither emotionally nor financially. He took Jonathan's advice and broached the subject with Joyce about entering into a prenuptial agreement, or financial agreement, if they were going to keep living together. Joyce didn't exactly know what that meant, but felt that because she was not able to return home to Brazil, and she was totally reliant on David financially and for housing, that she should probably agree.

David had Jonathan draft the proposed financial agreement, that essentially kept all of their finances separate, and that Joyce would not be entitled to anything in the event they separated, even if they had a child. David got Jonathan to come over to the Paddington property one day in June 2020, and explained the proposed agreement to Joyce, and that she would also need to have independent legal advice. Joyce did not think it was fair, but also was worried about being forced home to Brazil, which was in a state of civil unrest due to the pandemic. David sensed her hesitancy, and said that if she signed the agreement, he would not hesitate in marrying her. She had always dreamed of a wedding as a child, and David promised to take her away to an exotic location.

When the lockdowns lifted, David and Joyce planned to marry on 25 September 2020. Joyce's family could not come over for the wedding, due to the border closures. Her family were devout Roman Catholics, and were pleased that she was marrying. In August 2020, Joyce discovered that she was pregnant. She was happy, but also very worried about her family finding out that she had gotten pregnant out of wedlock. David understood and promised not to say anything to them.

In early September, as the wedding approached, Joyce had still not seen a lawyer to obtain advice on the financial agreement. Now, with a baby on the way, Jonathan advised David that if the agreement was not entered into, that Joyce would be able to claim on the property pool now that she was going to have their child. David panicked. He and Joyce got into an argument, and David threatened to call off or delay the wedding if she did not go and see a lawyer that day to sign the original proposed agreement. She said she did not understand it, and that he can't delay the wedding because her parents would disown her if they knew that she was already pregnant, and time was critical. He gave her the ultimatum, so she went to the family lawyer Jonathan had suggested, and crying signed the agreement. The lawyer she visited advised her against signing the agreement, because it was not within the range of outcomes a court would give her in the event of a separation, and made no account for the birth of the child. She said she was adamant that she wanted to sign it.

Once it was signed, she handed it back to David that night. He apologised for their argument, and that now it was done, it was behind them and they would live happily ever after. They married on 25 September 2020. Joyce gave birth in April of 2021 to a baby girl, Anna. Unfortunately Anna was born with cystic fibrosis, a rare respiratory condition that requires oxygen and around the clock care. Joyce was the primary carer for Anna, taking her to doctors' appointments and hospital visits, almost weekly.

David was stressed with his work, and was convinced that Joyce was having an affair with Anna's paediatrician. He and Joyce began to argue constantly for several months. David and Joyce separated on a final basis on 1 June 2023, after David discovered a text message on Joyce's phone to her mother that she was no longer in love with David, but felt trapped because she would not be able to support Anna or herself if they separated. David threatened to kick Joyce out of the house, and keep Anna from her.

Joyce was in a state of panic and left the matrimonial home at Paddington and went to a Women's Shelter in Kings Cross with Anna. Since that time however, she has secured accommodation in a 1 bedroom rental property with the help of the Immigration Resource Centre. This is temporary and she is unsure of how long she can remain living there.

David continues to live in the 3 bedroom Paddington property, which is worth $3 million. It has a mortgage over it of $1 million. Joyce recalls David talking about owning a share portfolio worth $250,000, and she saw a superannuation statement that said he has superannuation worth around $120,000. She has access to the American Express credit card that is in his sole name, and checked online and saw that there is about $2,000 worth of debt on that card at the moment. She still has the keys to the BMW X5 that is registered in her name and was an engagement present that David bought her. David drives the BMW 4 series he recent bought for $80,000, but has a debt with BMW Finance of $60,000.

Joyce continues to have the full time care of baby Anna and is unable to work for the foreseeable future. David earns approximately $430,000 per annum, or about $8,269 per week, before tax, and after tax is $5,500 per week. David would always complain about how expensive the mortgage repayments were, being $1,300 per week, and now the medical bills for Anna, which he continues to meet being $500 per week, and is now very concerned about interest rates going up.

He also has to pay child support for his two (2) children from a previous relationship at $1,200 per week, as well the private school fees for them both to attend the exclusive Featherington College in the Eastern Suburbs, which over each year, is approximately $1,346 per week. It leaves him, after tax and expenses, $1,154 per week - and that figure does not include his own expenses of $500 for food and bill and child support for Anna which is possibly going to be assessed at another $400 per week. He is a financial breaking point.

Joyce comes to you for advice.

QUESTION

Joyce has asked you if she should make an application for David to pay her Spousal Maintenance in the amount of $2,000 per week periodic payments, or $200,000 lump sum payment. Advise Joyce on the prospects of success of her application for Spousal Maintenance, referring to the principles, legislation, and case law.