Fairbanks and Fairbanks

[2009] FamCA 654

FAMILY COURT OF AUSTRALIA

FAIRBANKS & FAIRBANKS [2009] FamCA 654

FAMILY LAW – SPOUSAL MAINTENANCE – application by wife for spousal maintenance – where it is not identified whether the wife seeks urgent or interim spousal maintenance – where the parties’ financial statements provide little assistance to the Court – order for husband to pay interim spousal maintenance pending a short trial in the matter

Family Law Act 1975 (Cth)
APPLICANT:	Ms Fairbanks

RESPONDENT: Mr Fairbanks

FILE NUMBER: ADC 4336 of 2008

DATE DELIVERED: 3 June 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: BURR J

HEARING DATE: 3 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR NOBLE

SOLICITOR FOR THE APPLICANT: ANN BILLS & ASSOC

COUNSEL FOR THE RESPONDENT: MR McGINN

SOLICITOR FOR THE RESPONDENT: SCALES & PARTNERS

Orders

1. During the period of the adjournment to the listing of the matter for short trial, the husband do pay to the wife the sum of FIVE HUNDRED DOLLARS [$500] per week by way of interim spousal maintenance  (such payment to be without prejudice to either party’s position) to be paid by direct debit to Commonwealth Bank Account No … in the name of the wife

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4336  of 2008

MS FAIRBANKS

Applicant

And

MR FAIRBANKS

Respondent

REASONS FOR JUDGMENT

1. I have before me the wife’s Application filed on 3 November 2008 seeking by way of interim order that pending final orders for settlement of matrimonial property, the husband do pay to the wife spousal maintenance in the sum of $1,300 per week.  I note that in her Application she does not identify whether or not she is seeking “urgent” spousal maintenance or “interim” spousal maintenance.  There is clearly a difference and that difference would direct the Court to the appropriate enquiry and Orders that ought to be made.  Counsel invited me to make Orders on the papers as the wife today is seeking an increase in the amount that she was ordered to receive on 3 April 2009, namely $200 per week.  That Order was made by consent.  She now seeks an amount of $760 per week.

2. Reference to the Financial Statements of the parties is not of particular assistance to the Court.  The Financial Statement of the wife was filed on 3 November 2008.   That document does not assist her in that it identifies that she has in excess of $160,000 by way of available cash in various bank deposits.  Thus she can access those funds in order to support herself until the Court is in a position to make final Orders for both maintenance and property settlement. 

3. The Financial Statement of the husband is defective and is of almost no use to the Court whatsoever.  I refer to his Financial Statement filed on 1 April 2009.  In it he discloses an average weekly income of $924 and under Part G, expenditure totalling $263.  Part N of the form is blank, thereby leading the Court to the conclusion that he has no other expenses other than those listed in Part G and he therefore has available to him a net weekly amount of $661.  Whilst his Financial Statement is clearly inaccurate and inadequate, although sworn on oath by him, common sense suggests that he has to have some expenses for food, household supplies, utilities and the like.  However, he is unable to provide the Court today with any assistance as to what those expenses are.

4. Doing the best that I can with grossly inadequate documentation and also being cognisant of the fact that the wife does have available to her in excess of $160,000 in readily available funds, in my view the appropriate Order for the brief period of the adjournment is that the husband pay to the wife interim spousal maintenance of $500 per week, upon noting that such an Order will continue only until further determination of the issue at the ordered short trial of the proceedings.

I certify that the preceding four (4) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  3 June 2009