Dalley and Dalley (No.2)

[2015] FCCA 3518

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLEY & DALLEY (No.2) [2015] FCCA 3518

Catchwords:
FAMILY LAW – Maintenance – spousal maintenance – where applicant has care and control of two children of the marriage under the age of 18 years –  capacity to pay – whether applicant unable to support herself adequately –  respondent is on Centrelink benefits – respondent unable to work due to effects of serious head injury – respondent homeless.

Legislation:
Family Law Act 1975 (Cth), ss.44, 72, 74, 75

Cases cited:
Bevan & Bevan (1993) 19 Fam LR 35; (1995) FLC 92-593
Mitchell & Mitchell (1995) FLC 19 Fam LR 44; 92-601
MS & PS [2006] FamCA 588; (2006) FLC 93-268

Applicant: MS DALLEY

Respondent: MR DALLEY

File Number: SYC 4420 of 2011

Judgment of: Judge Scarlett

Hearing date: 9 March 2015

Date of Last Submission: 9 March 2015

Delivered at: Sydney

Delivered on: 21 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Ryan (direct brief)

Counsel for the Respondent: Mr McCann

Solicitors for the Respondent: Anderson Lawyers

ORDERS

1. The Application for spousal maintenance filed on 9 October 2014 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Dalley & Dalley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4420 of 2011

MS DALLEY

Applicant

And

MR DALLEY

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an application by the Wife for spousal maintenance. It is opposed by the Husband.

2. In her Application in a Case filed on 9^th October 2014 the Applicant seeks the following Orders:

   1. The Applicant Wife seeks by way of spousal Maintenance the sum of $300 per week payable by the Respondent Husband from 28^th July 2014.

   2. That the Respondent Husband pay the costs of and incidental to the Application.

3. In his Amended Response filed on 23^rd January 2015, the Respondent seeks a number of interim parenting orders, which are not relevant to this Application, and these Orders:

   1. The applicant’s Application in a Case filed on 9 October 2014 be dismissed.

   2. Further and in the alternative, that the applicant be barred from bringing her Application in a Case so filed or any further Application in respect of spousal maintenance pursuant to Section 44(3) of the Family Law Act 1975.

4. The Respondent did not press the order under s.44(3) of the Act.

Background

1. The parties are divorced. There are four children of the marriage, two of whom are under the age of 18 years. X was born on (omitted) 2003 and Y was born on (omitted) 2004.

Evidence and Submissions

1. The Applicant relied on:

   a)her affidavit of 19^th September 2014;

   b)her affidavit of 3^rd November 2014; and

   c)her Financial Statement filed on 28^th July 2014.

2. The Respondent relied on the following:

   a)his affidavit of 23^rd January 2015;

   b)his Financial Statement of 23^rd January 2015; and

   c)the affidavit of Dr W of 8