FAMILY COURT OF AUSTRALIA
| CELESTIN & CELESTIN | [2011] FamCA 74 |
| FAMILY LAW – SPOUSAL MAINTENANCE – Urgent |
| APPLICANT: | Ms Celestin |
| RESPONDENT: | Mr Celestin |
| FILE NUMBER: | SYC | 1822 | of | 2009 |
| DATE DELIVERED: | 21 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Cohen |
| HEARING DATE: | 3 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gould |
| SOLICITOR FOR THE APPLICANT: | Karras Partners Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Dwyer |
| SOLICITOR FOR THE RESPONDENT: | Mullane & Lindsay |
Orders
That within one month the husband shall pursuant to section 77 of the Family Law Act 1975 pay to the wife urgent spousal maintenance in a lump sum of $179,250, $100,000 of which is to be used by the wife to meet so far as that sum allows such accounts as she has received from her legal advisers for their costs and disbursements and has not paid or receives from them for their costs and disbursements, and $79,250 of which is to be used by the wife so far as that sum allows to meet her immediately payable debts and future living expenses.
In the event that the husband fails to comply for his part with order 1. the wife is hereby entitled forthwith to sell by such means and for such price as she sees fit all her right title and interest at law and in Equity in the real property known as Lots 12 and 13 situated at G and to deal with the proceeds of sale as she sees fit.
That for the purpose of allowing the wife to comply with order 2 the husband shall forthwith on his failure to comply with order 1 herein do all acts and things necessary to remove from the real property subject of order 2 all cattle and other livestock and otherwise ensure the wife has vacant possession of the said land.
IT IS NOTED that publication of this judgment under the pseudonym Celestin & Celestin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1822 of 2009
| MS CELESTIN |
Applicant
And
| MR CELESTIN |
Respondent
REASONS FOR JUDGMENT
Before the Court is an application by the wife for payment of what is commonly known as interim costs in the sum of $165,750 and a further payment of $79,250.00 by way of what is often called an interim partial property settlement. In fact, both sums are correctly sought in the wife’s application as urgent spousal maintenance pursuant to s 77 of the Family Law Act. The wife seeks the first mentioned payment because that is the amount her legal advisors estimate she will need to meet her legal costs and disbursements to completion of the final hearing. She seeks the so called partial property settlement because she owes about $53,500 to credit providers and needs, she says, a small additional amount of cash to fund her ordinary living costs which exceed her income.
The evidence does not satisfy…
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- CELESTIN & CELESTIN [2011] FamCA 74
- Case
- [2011] FamCA 74
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the extent and form of urgent spousal maintenance to be ordered. This involved determining an appropriate lump sum amount and specifying how those funds were to be applied by the wife, specifically for legal costs and immediate debts and living expenses. The court also had to consider the consequences of non-compliance by the husband with any maintenance order.
Justice Cohen ordered the husband to pay a lump sum of $179,250 to the wife within one month as urgent spousal maintenance. Of this amount, $100,000 was to be applied towards the wife's legal costs and disbursements, and the remaining $79,250 was to be used for her immediately payable debts and future living expenses. The court further ordered that should the husband fail to comply with this maintenance order, the wife would be entitled to sell her interest in specific real property to meet her financial obligations. To facilitate this, the husband was required to remove all livestock from the property and ensure the wife had vacant possession upon his failure to comply with the maintenance order.
Orders
Orders of the court
1.
That within one month the husband shall pursuant to section 77 of the Family Law Act 1975 pay to the wife urgent spousal maintenance in a lump sum of $179,250, $100,000 of which is to be used by the wife to meet so far as that sum allows such accounts as she has received from her legal advisers for their costs and disbursements and has not paid or receives from them for their costs and disbursements, and $79,250 of which is to be used by the wife so far as that sum allows to meet her immediately payable debts and future living expenses.
2.
In the event that the husband fails to comply for his part with order 1. the wife is hereby entitled forthwith to sell by such means and for such price as she sees fit all her right title and interest at law and in Equity in the real property known as Lots 12 and 13 situated at G and to deal with the proceeds of sale as she sees fit.
3.
That for the purpose of allowing the wife to comply with order 2 the husband shall forthwith on his failure to comply with order 1 herein do all acts and things necessary to remove from the real property subject of order 2 all cattle and other livestock and otherwise ensure the wife has vacant possession of the said land.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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