Eichel and Bauer

[2014] FCCA 1735

FEDERAL CIRCUIT COURT OF AUSTRALIA

EICHEL & BAUER [2014] FCCA 1735

Catchwords:
FAMILY LAW – Maintenance – spousal maintenance – urgent spousal maintenance – where wife has shown a need due to physical incapacity for gainful employment – where wife otherwise unable to support herself.

Legislation:

Family Law Act 1975 (Cth), ss.72, 75, 77

Applicant: MS EICHEL

Respondent: MR BAUER

File Number: SYC 2144 of 2014

Judgment of: Judge Scarlett

Hearing date: 7 July 2014

Date of Last Submission: 7 July 2014

Delivered at: Sydney

Delivered on: 9 July 2014

REPRESENTATION

Solicitor for the Applicant: Mr Manning

Solicitors for the Applicant: Manning Lawyers Pty Ltd

Solicitor for the Respondent: Mr Kent

Solicitors for the Respondent: Brennan Tipple Partners

ORDERS

UNTIL FURTHER ORDER

1. The Respondent Husband is to pay to the Applicant Wife by way of urgent spousal maintenance the sum of $500.00 per week, the first payment to be made on Friday 18 July 2014 and weekly thereafter. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2144 of 2014

MS EICHEL

Applicant

And

MR BAUER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for urgent interim spousal maintenance brought under the provisions of s.77 of the Family Law Act 1975 (Cth). The Applicant Wife seeks an order for urgent spousal maintenance in that she seeks that all funds held in a BankWest bank account in the name of the Husband, and funds available by way of redraw on the mortgage, should be payable to her. In the alternative, she seeks that in the event there are no funds available with regard to the above orders, then the Husband should pay the amount of $500.00 per week by way of urgent spousal maintenance until further order.

Evidence and Submissions

1. The situation is that, in respect of the property matters generally, there is a Conciliation Conference listed before a Registrar at 9:30 am on 10 September 2014. However, Mr Manning for the Wife has told the Court that his client cannot wait until that conference as far as the application for spousal maintenance is concerned. She has become unemployed due to a significant medical condition and, as recently as 27 May, resigned from that employment because she was unable to continue in that work due to the pain that she suffered on a daily basis.

2. The Wife deposed in her affidavit that she is now in urgent need of funds to meet her day-to-day living expenses, at least until the property matters can be resolved. In her affidavit she deposed that on 25 June she was obliged to sell her car for $5,700.00, which means that she no longer has a motor vehicle available to her. She has been left with $169.00 in her bank account, and she does not currently have the funds available to meet her legal costs, which, as at the first of this month amount to $11,729.55. In addition, she owes the sum of $3,961.00 on an ANZ credit card and $5,055.00 on her Commonwealth Bank credit card.

3. Against this, the Husband submits that he does not have the capacity to pay ongoing spousal maintenance, and that, whilst there is a fund identified, being a bank account with over $9,000.00 in it, that money is in fact a fund which he claims he holds on trust for the parties’ son. Otherwise, his expenses and income are almost, but not entirely, equal, and he does not have any available funds.

Applications for Urgent Spousal Maintenance

1. Section 77 of the Family Law Act 1975 provides for a summary form of urgent spousal maintenance. The section provides that where it appears to the Court that a party is in immediate need of financial assistance but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the Court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sum as the court considers reasonable.

2. This does not mean that the Court ignores the requirements of s.72 of the Act, which deals with the right of a spouse to maintenance. That section provides that a party to a marriage is liable to maintain the other to the extent the first-mentioned party is unable to support herself or himself adequately, whether:

   (a)    by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)   by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)     for any other adequate reason;

   having regard to any other relevant matter referred to in subsection 75(2).

3. I am satisfied, for the purposes of s.77, that the Applicant has shown an incapacity, for physical reasons, for appropriate gainful employment. She has shown an immediate need of ongoing maintenance. She has shown that there are funds available by means of the funds to which I have referred. I acknowledge the fact that the Husband has said that these funds are required for other purposes, but in my view there is an urgent need, certainly until the parties are able to present their case to a Registrar at the Conciliation Conference in September, for the Applicant to have ongoing maintenance to support herself.

4. In my view it will be a matter for the Respondent whether or not he utilises those funds in the bank account to which I have referred. He will be given the opportunity to make an appropriate decision. What I am satisfied about is that the amount of $500.00 per week is an appropriate sum for spousal maintenance to be paid on an urgent interim basis to take the parties through until the Conciliation Conference or immediately thereafter.

5. It is for this reason that I will order that the Husband is to pay to the Wife by way of spousal maintenance the sum of $500.00 per week, the first payment to be made on Friday 18 July 2014. It will be up to the Respondent to make such arrangements as to how he is going to provide these funds.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  5 August 2014