Grieves and Grieves

[2011] FMCAfam 1150

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRIEVES & GRIEVES [2011] FMCAfam 1150

FAMILY LAW – Spousal maintenance – urgent spousal maintenance – interim order.

Family Law Act 1975 (Cth) s.77

Applicant: MS GRIEVES

Respondent: MR GRIEVES

File Number: SYC 2146 of 2011

Judgment of: Scarlett FM

Hearing date: 19 September 2011

Date of Last Submission: 19 September 2011

Delivered at: Sydney

Delivered on: 19 September 2011

REPRESENTATION

Counsel for the Applicant: Mr Ladopoulos

Solicitors for the Applicant: McCabe Partners

Counsel for the Respondent: Ms Petrie

Solicitors for the Respondent: Giles Payne & Co

UNTIL FURTHER ORDER

1. The Respondent is to pay the Applicant $800.00 per week by way of urgent spousal maintenance by 4 October 2011 and weekly thereafter.

BY CONSENT THE COURT ORDERS THAT:

1. BY CONSENT that the Minute of Orders be marked as Exhibit 2 and by consent I make orders in accordance with paragraphs 1 to 7 inclusive.

THE COURT ORDERS THAT:

1. The parties are referred for a Conciliation Conference on 11 November 2011 at 9:30 am with a Registrar.

2. The parties comply with Rules 24.03, 24.04 and 24.05 by serving on each other copies of the documents listed in that rule no later than

   
   

   14 days prior to the date of the conference.

3. The parties exchange market appraisals or valuations of any asset, the value of which is in dispute, by no later than ten (10) days prior to the date of the conference.

4. The solicitors for the parties forward to the Registrar a Conciliation Conference Document no later than seven (7) days before the Conference.

5. The Application is adjourned to Monday 21 November 2011 at 12:00pm for further mention before Federal Magistrate Scarlett in Court 7A, Level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 2146 of 2011

MS GRIEVES

Applicant

And

MR GRIEVES

Respondent

REASONS FOR JUDGMENT

1. This is an application for urgent spousal maintenance and it is, by definition, essentially a short term application. 

2. These matters come under section 77 of the Family Law Act. It is essentially a summary procedure. These Applications are to be distinguished from interim spousal maintenance proceedings in which the Court goes through matters in depth. 

3. This is a case where a Court is being asked to form a view that there is an urgent need on behalf of a spouse. Sometimes it is because the spouse has the care and control, to use the old terminology, of a child of the marriage under the age of 18.  This is not such a case.  However, there is an Applicant who says that at present she does not have the funds to support herself properly in the short term.  She has provided some extensive detail of her weekly expenses from 18^th June 2011 through to 24^th August 2011. 

4. She is seeking an amount of $850.00 per week which is less than the average of the totals of the expenses on a weekly basis that she has claimed.  Looking at the amounts claimed and the items for which she has paid money, noting that previously she had access to a credit card that she does not now have, it is fair to say that there is not much that indicates luxurious or extravagant living.

5. The authorities make it clear that to succeed in such an application a party does not have to establish that she is completely on the breadline.  She is not required to show that within a few days she will be homeless with no income whatsoever. What needs to be shown is that there is a need at this stage for relatively rough estimate of an amount sufficient to allow her to continue to meet her expenses on a reasonable basis.  It is put that the Respondent does not, necessarily, have the capacity to meet these payments. Certainly, he has some borrowing capacity as can be seen from the material tendered. 

6. I would not be satisfied on the material before me that there was either an ongoing need or a capacity to pay which would go right through until a final hearing were to take place if such a thing is to happen.  I can indicate at this stage that the Court’s dates for final hearings of matters of this nature are well into October 2012 which is one reason why the Court is suggesting that some parties might wish to have property applications dealt with by way of a private mediation under the aegis of the Court rather than awaiting until the Court, with its crushing workload, can get to the hearing.

7. Counsel for the Respondent has pointed out that the Respondent has in fact offered an amount of $200.00 per week and has been meeting and will continue to meet a number of expenses including outgoings on the former matrimonial home.  These, of course, are matters that I have taken into account. I do not consider that any order for spousal maintenance would be added to the sum of $200.00 that he has been paying for what has been described by counsel for the Applicant as petty cash.  My view is that an order should be made on an interim basis for the one sum which would supplant the $200.00 which I am told is being paid at the moment.

8. It would be unjust and inappropriate to add it to that amount, as I told counsel for the Respondent. As I see it, the parties have come to an agreement for the sale of the former matrimonial home and this reflects a degree of realism on the part of both of them; no doubt that they have been guided in this by their respective legal advisors.

9. The arrangements are that the property has been listed for sale by private treaty and if it is not sold within a reasonable period of time then an auction is envisaged for 5^th November 2011.  It may well be, however, that the property does sell by private treaty before the auction. 

10. Of course, Mr Ladopoulos of counsel, who appears for the Applicant, who has reminded the Court that if the property sells at auction on

    
    

    5^th November 2011 it could well be four to six weeks before completion of the sale takes place and neither party would have money in their hands before then. 

11. That is true. What I have done is I have ordered that the parties attend a conciliation conference with a Registrar of this Court at 9.30am on Friday 11^th November 2011.  I propose to bring this matter back to court on Monday 21^st November 2011 for further mention at

    
    

    12:00 noon if that is a date that is convenient to the parties. 

12. I do propose to make an order that the Respondent until further order pay to the Applicant the sum of $800.00 per week by way of urgent spousal maintenance. The first payment is to be made on 4^th October 2011 and weekly thereafter.   

13. That is an order until further order and it will be reviewed either at the conciliation conference with the Registrar or if it is not dealt with then for some reason, it will be reviewed when the matter comes back before me for further mention on Monday 21 November 2011 at

    
    

    12 noon. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  25 October 2011