Grimshaw-Grieves & Grieves

Case [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…

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AGLC
Grimshaw-Grieves & Grieves [2011] FMCAfam 125
Case
[2011] FMCAfam 125
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Grimshaw-Grieves & Grieves was brought to address issues of spousal maintenance under the Family Law Act 1975. The applicant sought urgent spousal maintenance, claiming immediate need for financial assistance. The respondent opposed the application on the grounds that the applicant had not demonstrated the required immediate need for such assistance.

The court was tasked with determining whether the applicant had established an immediate need for financial assistance and whether this was a condition precedent to hearing the application for urgent spousal maintenance under section 77 of the Family Law Act. The court also considered the procedural aspect of transferring the application to the Family Court of Australia, as the application was initially heard in the Federal Circuit Court of Australia.

The court concluded that the concept of an "immediate need" was not a condition precedent to the hearing of an application under section 77 of the Family Law Act. It found that the application was appropriately heard and decided despite the absence of a demonstrated immediate need. The court also determined that the application should be transferred to the Family Court of Australia for further proceedings. Consequently, the application for urgent spousal maintenance was dismissed and transferred to the Family Court of Australia for further consideration.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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