BOWDEN & ALEBHIM - [2012] FamCA 318

FAMILY COURT OF AUSTRALIA

BOWDEN & ALEBHIM

[2012] FamCA 318

FAMILY LAW – PRACTICE AND PROCEDURE - Section 82 application after periodic order expired - Section 44(3) application where facts insufficient.

Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth)

Aguilar &Aguilar [2009] FamCA 1343
Caska & Caska [2001] FamCA 1279
Collins & Collins (1993) FLC 92-343
Hedley and Hedley [2009] FamCAFC 179; (2009) FLC 93-413
Sharp and Sharp [2011] FamCAFC 150
Whitford and Whitford (2979) FLC 90-612

APPLICANT:

Ms Bowden

RESPONDENT:

Mr Alebhim

FILE NUMBER:

MLC

8231

2007

DATE DELIVERED:

4 May 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

1 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Davis

SOLICITOR FOR THE APPLICANT:

Robinson Gill

COUNSEL FOR THE RESPONDENT:

Mr Werner

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

That the application of the wife filed 11 April 2012 (seeking interim or procedural orders) and the response thereto filed by the husband on 1 May 2012 (as to interim orders) are adjourned for a one day hearing before me on 12 July 2012 at 10.00am subject to any part-heard case that day.
That the application of the wife for urgent spousal maintenance this day is dismissed.
That the husband do all acts and things necessary to authorise his accountant to speak to and make available to the solicitor for the wife such information as may be required by her about his current financial position.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowden & Alebhim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8231 of 2007

Ms Bowden

Applicant

And

Mr Alebhim

Respondent

REASONS FOR JUDGMENT

In this urgent interim spousal maintenance hearing, counsel for the applicant wife described the husband’s approach to the wife’s claim as callous. If all of the facts asserted by the wife are true, she has significant physical, emotional and financial difficulties. That situation however, does not permit a court to go outside its powers and make orders beyond its jurisdiction. In this case, it is not appropriate to make the orders immediately sought by the wife. That is not to say that on a proper hearing, the wife’s difficulty will continue.
This is an urgent application under s 77 of the Family Law Act 1975 (Cth) (“the Act”) by the wife for $2000 per calendar month for the next two months. It was described by her counsel in opening her case as a variation of orders made on 11 May 2009 by this Court.
The husband sought that the wife’s application be dismissed.
The husband served unsealed copies of his documents upon which he intended to rely on, the previous day to the hearing. They…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BOWDEN & ALEBHIM

Details

AGLC: BOWDEN & ALEBHIM [2012] FamCA 318
Case: [2012] FamCA 318
Decision Date: 4 May 2012

CaseChat Overview and Summary

In the matter of *Bowden & Alebhhim*, heard before Cronin J, the wife sought urgent spousal maintenance and other interim or procedural orders, to which the husband filed a response. The wife's application for urgent spousal maintenance was dismissed, while her broader application for interim orders and the husband's response were adjourned for a further hearing.

The primary legal issue before the court was whether to grant the wife's application for urgent spousal maintenance. The court also considered the wife's other interim applications and the husband's response thereto.

Cronin J dismissed the wife's application for urgent spousal maintenance. The court reasoned that the wife had not satisfied the threshold for urgent spousal maintenance. However, the court ordered that the husband must take all necessary steps to authorise his accountant to provide the wife's solicitor with information regarding his current financial position. The court also certified that it was reasonable to engage counsel for the proceedings.

Orders

Orders of the court

That the application of the wife filed 11 April 2012 (seeking interim or procedural orders) and the response thereto filed by the husband on 1 May 2012 (as to interim orders) are adjourned for a one day hearing before me on 12 July 2012 at 10.00am subject to any part-heard case that day.

That the application of the wife for urgent spousal maintenance this day is dismissed.

That the husband do all acts and things necessary to authorise his accountant to speak to and make available to the solicitor for the wife such information as may be required by her about his current financial position.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.