Geston and Geston
[2011] FMCAfam 1418
•9 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GESTON & GESTON | [2011] FMCAfam 1418 |
| FAMILY LAW – Maintenance – spousal maintenance – application for urgent spousal maintenance – interim order – immediate need of financial assistance – where applicant has a child of a previous relationship residing with her. |
| Family Law Act 1975, ss.74, 75, 77 |
| Grimshaw-Grieves & Grieves [2011] FMCAfam 125 |
| Applicant: | MS GESTON |
| Respondent: | MR GESTON |
| File Number: | SYC 6379 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 December 2011 |
| Date of Last Submission: | 9 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bateman |
| Solicitors for the Applicant: | James Richardson Family Lawyers |
| Solicitor for the Respondent: | Ms Dorrough |
| Solicitors for the Respondent: | Dorrough Smart Solicitors |
ORDERS
UNTIL FURTHER ORDER the Respondent is to pay to the Applicant the sum of $355.00 per week by way of urgent spousal maintenance under the provisions of section 77 of the Family Law Act1975, the first of such payments to be made on 16 December 2011 and weekly thereafter.
The Respondent is to file and serve a Response and affidavit setting out the facts upon which he relies and a financial statement by 17 February 2012.
The Applicant’s Costs are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Geston & Geston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6379 of 2011
| MS GESTON |
Applicant
And
| MR GESTON |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application for urgent spousal maintenance under the provisions of section 77 of the Family Law Act. The Applicant is the Wife and she is seeking an order against the Husband. The application was contained in an application whereby certain interim orders were sought, including injunctive orders restraining the Respondent from selling, mortgaging, encumbering or otherwise alienating certain items of real property owned by him until the finalisation of the substantive property proceedings.
That injunction has been made until further order and remains in force. The Wife claims that she is in a position where she is unable to support herself adequately on her current income and with her current outgoings. The information before the Court is relatively sparse in that the Applicant has filed an application, a financial statement and an affidavit, but the Respondent’s solicitor has only been able to file a Notice of Address for Service and put together at short notice some financial documents from the Husband.
I would make it clear, however, that an affidavit of service was filed on 2nd December showing that the respondent was served on 12th November 2011, but when this matter first came to Court on 21st November the Respondent had not then obtained legal representation. He subsequently did so and his solicitor, Ms Dorrough, has attended Court on the last occasion at relatively short notice. At that stage the application for urgent spousal maintenance was pressed.
By then the Respondent had left the country on a business trip and his solicitor informs me that he is not expected to return to Australia until the middle of January. Thus the evidence before the Court is somewhat circumscribed to say the least. However, as Mr Bateman of counsel, who appears for the Applicant, submitted this in many ways is a classic example of a section 77 application. I have been referred to an earlier decision of mine in the matter of Grimshaw-Grieves & Grieves[1], in which I set out a brief review of the applicable law and the matters that the Court needed to consider in such an application.
[1] [2011] FMCAfam 125
At paragraph 3 of the decision I said then:
[3]The procedure under section 77 is essentially a summary procedure as is quite clear from the wording of the section itself, which says:
Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the Court that the party is in immediate need for 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 sums as the Court considers reasonable.[2]
[2] [2011] FMCAfam 125 at [3]
I went on at paragraphs [13] to [15] of the decision to make these comments, which appear to me to be applicable to the matter under review:
[13] I have had the benefit of considering the comments in the annotated version of the Butterworths text where it is pointed out that urgent maintenance can be ordered under the section where it appears to the Court that a party to the marriage is in immediate need of financial assistance, that in the circumstances it is not practical to determine immediately what if any order should be made. The learned practice goes on to say that these applications have particular characteristics in that they are intended to deal with urgent situations.
[14] They are normally relevant for a defined or definable period of time. They are in the nature of “stop- gap” orders. That does not mean that they have to be “breadline” orders, and the appropriate quantum depends on the particular circumstances of each case and the financial background and history of the parties.
[15] Where the need for maintenance is urgent, the Court under this section is authorised to make an order on such evidence as may be available in a summary hearing and the application is heard at a time when all the evidence is not yet to hand, and that, indeed, is what has been the situation here.[3]
[3] [2011] FMCAfam 125 and [13]-[15]
The Applicant relies on her financial statement. In part B she sets out her total average weekly income of an estimated $270.00, and a total personal expenditure of an estimated $353.00. She gives the total value of the property that she owns as $17,020.00 and the total of her liabilities as $7,850.00. Both of those figures are estimated. In part D she sets out in more detail particulars of her income. At point 12 she sets out that she receives from Centrelink a Newstart Allowance of $270.00 per week that she estimates.
She also sets out in part N of the document a list of expenses which are applicable to her and are listed expenses applicable for her child. Those figures total $197.00 per week and at point 32 of the financial statement she adds the $197.00 to the $270.00 to reach a total at point 33 of $353.00. Now, it should be made clear that the child to whom the Applicant refers is her son, [X], aged 13. It is conceded that he is not a child of the Applicant and her husband. He is the Applicant’s child by a previous marriage. He does, however, live with her.
It is also relevant that the Applicant receives a rent allowance paid by Housing, New South Wales and she receives some assistance from her sister and her adult son.
The Applicant relies on an affidavit affirmed on 18th October in support of her application. She sets out at paragraph 15 of the affidavit details of items of real estate in the Sydney area, which she believes that the Husband owns. She points out at paragraph 26 that the Husband traded as an [occupation omitted] in premises at [omitted].
She sets out at paragraph 43 items of furniture which she took with her and at paragraph 44 items which she says she still needs, such as a car, a dining table, a refrigerator, a music system and a computer for [X] and others. She also sets out what she would do if she had more money and she would spend money on more food, clothing, entertainment for [X], holidays, household goods, internet connection and a motor car. Those, however, are an estimate as she sets out of the things that she would spend money on if she had an increased income, which would enable her to do that.
It is relevant that the Applicant says that she suffers from a number of medically diagnosed conditions, including hypertension, anxiety and depression and an adjustive disorder. She annexes to her affidavit copies of a medical report from her general practitioner, Dr J, a report from a psychologist, Mr N, and a report from Ms C, the senior social worker at [omitted] Hospital.
In the proceedings before the Court today the Applicant has also tendered a further document, being an updated medical certificate from Dr J dated 5th December 2011 which sets out that the Applicant is still under care for high blood pressure, and sets out the doctor’s opinion that she would be unfit to continue her usual occupation at this stage. She has previously worked as a [occupations omitted].
Ms Dorrough, for the Respondent, has made available to the Court copies of income tax returns and profit and loss accounts showing the Husband having made a loss in recent years. She submitted that the Wife’s medical conditions were not new in that they had been in existence at the time when the parties lived together, but until 2010 it was submitted that the Applicant had been able to engage in some form of gainful employment.
She is not, however, in a position where she is required to seek employment from Centrelink in respect of her Newstart Allowance because of her medical conditions. A submission was also made in respect of the Applicant’s son, [X], who is, of course, the Applicant’s child by a previous marriage. It was submitted that the Applicant should, in fact, look to the Father of the child for that child’s support, and indeed, she should. However, it has been pointed out by Mr Bateman of counsel that the Father is in Africa and has been there certainly for the last 12 months and it is not practicable for the Applicant to seek any form of child maintenance from him in the circumstances.
It should be made clear that this is not an application for child maintenance. It is an application for urgent spousal maintenance. The relevance of the fact that the Applicant’s son lives with her and is dependent on her is not to support a claim that the Respondent should pay for his support, but it is an illustration of the Applicant’s financial situation and the expenses which she has to meet. Those matters, of course, are set out under subsection 75(2) of the Family Law Act.
It is also relevant, as Mr Bateman of counsel pointed out, that the $270.00 per week that the Applicant receives is covered by subsection 75(3) of the Act, which says:
In exercising its jurisdiction under section 74 a Court should disregard any entitlement of the party’s maintenance as under consideration to an income-tested pension allowance or benefit.
I think it is fair to say that the amount that the Applicant receives from Centrelink as a Newstart Allowance is, in fact, an income tested allowance. Accordingly, it should be disregarded. The Court is somewhat hampered in that it only has limited evidence as to the Respondent’s capacity to pay, although it seems to me that, with respect, the Respondent’s solicitor has done her level best in an extremely short period of time to provide relevant information to the Court.
What it then boils down to is for the Court to decide whether or not the Applicant has shown that she is in immediate need of financial assistance. I am of the belief that the evidence before the Court is sufficient to show that the Applicant is in immediate need of financial assistance. Now, that leaves the Court with the question of determining or attempting to determine what, if any, order should be made. The Court should consider obviously whether the quantum of any order that should be made under section 77 of the Act.
The Applicant seeks $750.00 per week. Mr Bateman of counsel submitted that on the evidence before me she could readily demonstrate a slightly lesser sum of some $655.00 per week. I am of a view that that is perhaps a little bit generous in the circumstances. It is certainly the case that the Court should not consider what the Applicant would spend her money on if she received more money. The Court must look at whether the Applicant is in immediate need of financial assistance.
The financial statement submitted by the Applicant is most useful in those circumstances and has been prepared by the Applicant’s solicitor with some care. It is certainly a fact that in spousal maintenance proceedings that the Court does look at what is set out in a financial statement. It is not just a mere formality that an party should complete such a document. It is meant to be completed accurately so that the Court can rely on it, and I am of a view that the document shows that that is what has been done in this case.
Accordingly, I am satisfied, based on the financial statement, that the Applicant has shown a total personal expenditure - as she has set out at point 33, based on the totals in point 32 and in part N of the document – amounting to $353.00 per week. That is, of course, an approximation. In my view, whilst I am not prepared to make an order in the sum of $750.00 per week, I am of the view that an order should be made in the sum of $355.00 per week.
I note that an open offer was made to the Court by the Respondent’s solicitor in the sum of $250.00 per week. That was subject to certain conditions that it should not be immediately characterised as spousal maintenance but in the forthcoming proceedings on an interim basis should be characterised perhaps in some other way. That is not uncommon and applications are made in that regard to the Court quite frequently.
The Applicant, however, has obtained advice and her counsel informed the Court that his instructions were that she would not accept the open offer. As it is the order that the Court makes exceeds the amount that was put before the Court by $105.00 per week.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 December 2011