Grimshaw-Grieves & Grieves
[2011] FMCAfam 125
•16 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRIMSHAW-GRIEVES & GRIEVES | [2011] FMCAfam 125 |
| FAMILY LAW – Maintenance – spousal maintenance – urgent spousal maintenance – immediate need of financial assistance – whether applicant has shown immediate need of financial assistance. PRACTICE & PROCEDURE – “Immediate need” not a condition precedent to the hearing of an application under Family Law Act 1975 (Cth) s.77. |
| Family Law Act 1975, ss.77, 80 |
| Malcolm & Malcolm (1977) FLC 90-220 Williamson & Williamson (1978) FLC 90-505 Ashton & Ashton (1982) FLC 91-285 Pritchard & Pritchard (1982) FLC 91-286 |
| Applicant: | MS GRIMSHAW-GRIEVES |
| Respondent: | MR GRIEVES |
| File Number: | SYC 7191 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 February 2011 |
| Date of Last Submission: | 15 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tyndall |
| Solicitors for the Applicant: | Alan J. McKimm & Associates |
| Counsel for the Respondent: | Ms Christie |
| Solicitors for the Respondent: | Watts McCray |
ORDERS
The Application for urgent spousal maintenance under section 77 of the Family Law Act is dismissed.
The Application is transferred to the Family Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Grimshaw-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 7191 of 2009
| MS GRIMSHAW-GRIEVES |
Applicant
And
| MR GRIEVES |
Respondent
REASONS FOR JUDGMENT
There was before the Court yesterday an application on behalf of the Applicant Wife for urgent spousal maintenance under the provisions of section 77 of the Family Law Act. That application was opposed and indeed, the very hearing of it was opposed.
However, I ruled that the question of immediate need, which appears in section 77, is not a condition precedent to the hearing of the application but a matter which an applicant must prove, in order to establish a claim under section 77.
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.
The application was opposed on two bases:
i)That the Applicant could not show an immediate need; and
ii)That there had not been shown either an income stream which would support an application or a particular asset from which spousal maintenance in some form or other could be taken.
However, it was put to the Court, on behalf of the Applicant, that the Applicant was, in fact, able to demonstrate an immediate need for financial assistance.
Background
The history of the matter was that the Applicant Wife was employed by what was the family company, from 1999 through to September 2010, when she was, in effect, put off. There had been an intermingling of finances and there were some restructuring which took place in 2006, the objective being to create a tax deductible debt which was in fact ascertained.
The unfortunate circumstances between the parties were such that the marital relationship deteriorated and there was, in 2009, a separation. What has been put is that the Respondent Husband has, in fact, acted unilaterally to cease the payment of amounts for various utilities and it might, perhaps, be thought to be an unfortunate circumstance where a respondent, who is seeking parenting orders involving more time with his children, should, in fact, take a decision to cease paying certain accounts relating to the home in which they reside with their mother.
There have been other issues that have been brought to the Court’s attention, including the quite serious injuries that the Applicant Wife suffered in a bicycle accident, and the ongoing medical issues and expenses that have arisen as a result of that. It is also a matter of note that, whilst the Applicant Wife claims that, as a result of her lengthy employment with the family company, that she has to some extent been de-skilled because she has not otherwise had experience out in the wider workforce. At the same time, she has been seeking, not unreasonably, to re-train in another area which, in the long run, would go towards enabling her to obtain an income.
Submissions
Thus it was submitted that an immediate need had been shown which would support an order that the Respondent Husband should pay urgent spousal maintenance to the Wife in a weekly sum of $1,050.00, and that sum which was put was significantly less than the Wife’s pre-redundancy earnings with the particular company. It was also sought that the Respondent Husband should pay 100 per cent of the loan repayments in relation to the mortgage secured over the former matrimonial home, and that he should pay certain expenses involving utilities and other ongoing expenses relating to the Applicant, and also for the benefit of the children, being private health insurance, home telephone, internet, electricity and gas accounts. Some of those matters would clearly be for the benefit of the children.
The information before the Court is that the Father is making some payments of child support, which the Applicant sets out in her financial statement as amounting to $30.33 per week, which is certainly not a large amount and would not meet the bulk of the expenses of the children involved.
Counsel for the Respondent Husband has submitted that there is no immediate need that has been shown, noting that in the Applicant’s financial statement, filed on the 2nd of this month, that she discloses a bank account with the current balance of $17,300.00.
The bank account is a matter of some relevance and I will comment more about that shortly. It was also put that, whilst there had been a lump sum received which the Applicant had accounted for in her affidavit, she had not accounted for the significant salary that she had received until, of course, her redundancy took effect. What the Court has to do is look at the very nature of this application which is under section 77, and I have already quoted from the section.
The relevant law
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.
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 upon the particular circumstances of each case and the financial background and history of the parties.
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. There was a summary application made yesterday, and in my view the way in which the application was made yesterday and argued was the way that the drafters of the Family Law Act intended such applications to be made.
It is most interesting to note that the authorities on applications of this nature go right back to the early years of the Family Law Act. There are very few recent authorities. They mainly deal with the period from 1977 through to 1982.
In the Marriage ofMalcolm & Malcolm[1], was a decision of the late Watson SJ. His Honour stated that the court is only concerned with the question whether it appears that the party is now in immediate need of financial assistance, saying:
Whatever may have been the proper view under the superseded law, s.77 is meant to serve a different purpose – it is to provide emergency funding in those cases where the court is unable to determine immediately what order should be made.[2]
[1] (1977) FLC 90-220
[2] (1977) FLC 90-220 at 76,145
The matter was further considered the following year by the Honourable Ashe SJ in Williamson & Williamson[3] and in that decision at page 77,648 his Honour referred with approval to the decision of Watson J in Malcolm & Malcolm, referring particularly to his Honour’s statement quoted above.
[3] (1978) FLC 90-505
The question of the difference between urgent spousal maintenance under section 77 and interim maintenance applications was dealt with by Nygh J in two decisions in 1982, Ashton & Ashton[4] and Pritchard & Pritchard[5].
[4] (1982) FLC 91-285
[5] (1982) FLC 91-286
In those two decisions, his Honour made it quite clear that there was a significant difference between urgent spousal maintenance and an interim application, and indeed there is. Urgent spousal maintenance is provided for by section 77 of the Act, and interim applications are dealt with under section 80 of the Act, and different principles apply. What is clear, however, is that there is a need on a quick basis to establish an immediate need of financial assistance.
Now, as I said, it has been put to me by Ms Christie of counsel that the Applicant’s evidence shows that she has a sum of money in a bank account which she estimated, certainly on 2 February, to be $17,300.00. It is not the case that the possession of money in a bank account will of itself negate the question of immediate need because that was an issue that Watson J looked at in Malcolm & Malcolm back in 1977.
It is very much a factual issue. I get back to the fact that an application for spousal maintenance under section 77 is an urgent matter. In my view, the fact that the Applicant has funds at her disposal in the amount of $17,300.00 goes a long way at this stage to militate against her claim that she is in immediate need of financial assistance. This is not to say that at some stage in the relatively near future she may well be able to demonstrate a claim for a need for ongoing maintenance until further order under section 80 of the Act, but the procedure is very different. There needs to be a separate application and that is dealt with in a more conventional way, as Nygh J pointed out in the decisions of Pritchard and Ashton in 1982:
But where the Court is dealing with an application for maintenance which does not qualify for the summary procedure authorised by sec. 77, the Court must conduct the proceedings for maintenance in the ordinary form, after giving the usual directions for the filing of pleadings, and after hearing all relevant evidence having regard to the matters set out in sec. 75(2).[6]
[6] (1982) FLC 91-286 at 77,615
Conclusions
In my view the Applicant has not demonstrated an immediate need of financial assistance. That being the case, it is unnecessary for the Court to consider at this stage whether or not there is an income stream which would support an application or a particular asset. The failure to establish an immediate need of financial assistance to my mind is sufficient to lead to a dismissal of the application.
The application for urgent spousal maintenance under section 77 of the Family Law Act is dismissed.
Turning now to the bigger issue, my view is that it is appropriate to live up to what I said earlier about my view of the length and complexity of the way this matter is going to go. I think that the earlier I transfer this matter to the Family Court of Australia, the better, and I am of the view that interlocutory matters are best dealt with in that Court, rather than this Court.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 18 February 2011
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