JANTZEN & LESTER

In Jantzen & Lester, heard by Judge Harland, the applicant sought a lump sum spousal maintenance payment from the respondent. The respondent was incarcerated for serious drug offences, and his property was subject to an automatic forfeiture order under Victorian legislation.

The central legal issue before the court was whether it had the power to order spousal maintenance to be paid from property that was subject to a restraining order made under the *Confiscation Act 1997* (Vic) due to the respondent's serious drug offences. The court was required to consider the interplay between the spousal maintenance provisions of the *Family Law Act 1975* (Cth) and the forfeiture provisions of the Victorian Act.

Judge Harland reasoned that section 80(1)(ba) of the *Family Law Act* permitted the court to make orders for the payment of spousal maintenance by way of transfer of property, even if that property was subject to other legal encumbrances or restraints. The court found that the purpose of spousal maintenance was to ensure a party was not left in financial hardship, and this purpose could be fulfilled by directing payment from the proceeds of the respondent's forfeited property. The court acknowledged the existence of the restraining order but determined that it did not preclude the Family Court from making an order for spousal maintenance, particularly given the specific wording of section 80(1)(ba).

The court ordered the respondent to pay the applicant $200,000 by way of lump sum spousal maintenance. To secure this payment, the court declared, pursuant to section 80(1)(ba) of the *Family Law Act*, that the payment be made from the balance of the proceeds of sale of the respondent's property located at A Street, Suburb B, Victoria. These proceeds were held by the Asset Confiscation Operations department and were subject to a restraining order. The payment was to be made to the applicant's solicitor, and the Director of Public Prosecutions for Victoria was to be served with a copy of the order. Liberty to apply was reserved to the applicant in respect of compliance.