Grimshaw-Grieves & Grieves

[2011] FMCAfam 125

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

1. The Application for urgent spousal maintenance under section 77 of the Family Law Act is dismissed.

2. 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

1. 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. 

2. 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.

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.

4. 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.

5. 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

1. The history of the matter was that the Applicant Wife was employed by what was the…