BLAKE & BLAKE

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BLAKE & BLAKE [2011] FMCAfam 796

FAMILY LAW – Property – threshold issue – bankrupt spouse’s standing to bring application for property orders – application to vary a spousal maintenance order.

Family Law Act 1975, ss.74(2), (3), (5), (6), 79(5), 83(1A), 83(1A)(b)

Audet v Audet; Official Trustee in Bankruptcy (Intervener) (1995) FLC 92-607
Cummings v Clearmont Petroleum (1996) 185 CLR 124
In the Marriage of O’Neill (1998) 23 Fam LR 326
Pacelli v Hopkinson & Anor [2010] FMCAfam 1248
Rand v Rand (No.2) (2009) 41 Fam LR 668

Applicant: MS BLAKE

Respondent: MR BLAKE

File Number: MLC 11120 of 2009

Judgment of: Connolly FM

Hearing date: 4 March 2011

Date of Last Submission: 15 April 2011

Delivered at: Melbourne

Delivered on: 17 August 2011

REPRESENTATION

Counsel for the Applicant: Mr Nehmy of Counsel

Solicitors for the Applicant: Hall & Wilcox

Counsel for the Respondent: Mr Johns

Solicitors for the Respondent: Carew Counsel Pty Ltd

ORDERS

1. The application for modification of the spousal maintenance orders made on 11 December 2009 be listed for hearing on a date to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym Blake & Blake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 11120 of 2009

MS BLAKE

Applicant

And

MR BLAKE

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. This judgment arises from the husband’s application in a case filed on 5 November 2010 seeking to discharge the interim spousal maintenance order made by consent on 3 February 2010 that he pay the sum of $5,300.00 per month commencing on 18 February 2010. 

2. The husband’s application in a case filed on 5 November 2010 is supported by:

   a)

   an updated statement of financial circumstances filed on

   
   

   5 November 2010; and

   b)an affidavit by the husband filed on 5 November 2010.

3. When the matter came on for hearing in a duty list on 21 December 2010, the respondent wife sought to make submissions about the husband’s standing to bring the application whilst a bankrupt, to discharge the spousal maintenance order.  Orders were then made on

   
   

   21 December as follows:

   i)all extant applications be adjourned to this Court on 4 March 2011 for hearing the threshold issue of whether the Applicant husband has the necessary standing to bring his application filed on 5 November 2011 (with an estimated hearing time of 1 day); and

   ii)the party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Regulations 2000.

4. When the matter came before the Court on the adjourned date of

   
   

   4 March 2011, it became clear that it was unlikely to be reached, and both counsel sought to have the matter determined on written submissions.  Accordingly, orders were made as follows:

   i)Within…