Galitsis & Galitsis

In *Galitsis & Galitsis*, heard in the Family Court of Australia at Melbourne, Cronin J considered applications by the wife for exclusive occupancy of the former matrimonial home and for spousal maintenance. The parties had separated in April 2006, with the wife leaving the matrimonial home in September 2006 with the two children of the marriage. The husband remained in the home. The wife’s initial application sought exclusive occupancy and periodic spousal maintenance.

The court was required to determine two primary legal issues: first, whether the wife should be granted exclusive occupancy of the matrimonial home, and second, whether the wife met the threshold for spousal maintenance and, if so, whether the husband had the capacity to pay. The determination of these issues was complicated by a lack of current material and contested assertions by both parties regarding their financial circumstances and intentions.

Regarding the application for exclusive occupancy, Cronin J noted that the wife had indicated in December 2006 that she no longer intended to pursue this as an interim issue, despite earlier requests for the husband to vacate. Applying the principles from *S & S* [2002] FamCA 59, which require consideration of the means and needs of the parties and children, hardship, and conduct, the court found that the lack of current material made it extremely difficult to exercise its discretion in favour of the wife. Consequently, this part of her application was dismissed. On the issue of spousal maintenance, the court found that the wife satisfied the threshold test under section 72 of the *Family Law Act 1975* (Cth), demonstrating an inability to adequately support herself, primarily due to her role as the primary caregiver of the children. However, after examining the husband's financial position, including his income, expenses, and significant credit card liabilities, the court concluded that he did not have the capacity to pay spousal maintenance.

Accordingly, the court ordered that the wife's applications for exclusive occupancy and spousal maintenance be dismissed. The parties were given liberty to make applications for costs, with specific directions for filing and responding to such applications by late April and early May 2007. All interim applications were to be removed from the list, pending any costs orders, and the matter was certified as one where engaging counsel was reasonable. The proceedings were otherwise to await a Trial Notice listing.