N & Z - [2002] FMCAfam 441

FEDERAL MAGISTRATES COURT OF AUSTRALIA

N & Z

[2002] FMCAfam 441

Family Law – URGENT SPOUSAL MAINTENANCE – No basis for claim – sole occupation claim – no basis for claim.

Family Law Act 1975

Applicant:

X N

Respondent:

Z Z

File No:

MLM 7848 of 2002

Delivered on:

18 December 2002

Delivered at:

Melbourne

Hearing Date:

18 December 2002

Judgment of:

Phipps FM

REPRESENTATION

Applicant:

Ms X. N appeared on her own behalf

Counsel for the Respondent:

Ms S M Frederico

Solicitors for the Respondent:

Neal Collin & Associates

ORDERS

THAT the Interim Application be dismissed.
THAT the Wife’s Form 12 Application filed on 11 December 2002 be heard with the Form 3 Application filed 11 September 2002 already listed for a final hearing on 24 April 2003 at 10.00am.
THAT the Husband’s costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 7848 of 2002

X N

Applicant

And

Z Z

Respondent

REASONS FOR JUDGMENT

The parties were married on 9 February 2001 and were separated on 17 June 2002. There are no children of the marriage. The wife is an Australian citizen and the husband is a citizen of I think H K and so that part of the R of C. His status in Australia is a visa which, as I understand from the materials I have read and from what I have been told, depends upon him being sponsored by the wife. Since the parties have separated, either because of that or because she has withdrawn the sponsorship, the status of his visa is at risk and he is at risk of being deported to C if he does not return voluntarily.
The parties purchased a property in K where they lived as their matrimonial home. That is at 24 H Drive, K. There is some limited material about its value, but it does seem to be a property of some significant value. The husband commenced property proceedings by application filed 11 September 2002. That application, by order of the Chief Federal Magistrate made on 10 December 2002, is fixed for final hearing on 24 April 2003.
The background to that application is that the property - was purchased for $411,000 in May 2000. There is a mortgage to the Commonwealth Bank of $181,000 and moneys were borrowed from family and friends and the husband says that he had some of his own savings.
What is now before the court is an application for maintenance by the wife which was filed on 11 December, the day after the order was made by the Chief Federal Magistrate fixing the property matter for final hearing. The wife has included in that application, an application for sole occupation of the house at 24 H Drive, K. It is currently occupied by the husband. The wife has moved out.
The wife is acting for herself and is appearing for herself. The husband is represented by counsel, Ms Frederico. With the application for maintenance the wife filed a financial statement and an affidavit. The husband has subsequently filed a response to the maintenance application and an affidavit on 17 December 2002 and the wife has filed an affidavit today on 18 December 2002.
I treat the Application for maintenance as an application for urgent maintenance. Spousal maintenance is governed by section 72 of the Family Law Act 1975 and the following sections: Section 72 provides:
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2).
Section 75(2) sets out a series of matters to be taken into account in determining maintenance cases. Section 77 deals with urgent spousal maintenance. That provides:
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 of 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 wife's material discloses no income and rental payments of $105 per week. She says in her affidavit, and she has said to me, that she cannot continue on with the rent and that she is about to be evicted. The husband, as I have said, is residing in the matrimonial home. He deposes in his affidavit to having a limited ability to obtain employment because of his visa status and he is currently in casual employment earning about $320 per week. He is making the mortgage payments. The precise amount of that I have not been able to ascertain from the documents, but obviously they are a substantial amount. He said he is being assisted by a friend to make those mortgage payments. The wife alleges that the husband has numbers of other people staying in the house.
The wife appears to be approaching the application she has made on this basis: the house in K, she says, is a valuable one and could be rented out for a substantial amount of money. The way she put it was that if she had use of the house she would be able to pay the husband $300 per week. But that is not the way I am required to approach this application. I am required to approach it in terms of the provisions of the Family Law Act 1975 and insofar as the maintenance is concerned, those to which I have referred.
I have said that I would treat this as an application for urgent spousal maintenance, but first of all, I have to find some basis in the matters set out in section 72 and subsection 75(2) for making those orders. Firstly, is there a basis for saying that the wife is unable to support herself by reason of age or physical or mental incapacity for appropriate gainful employment? This matter was originally in the duty list yesterday and eventually came up very late in the day. I was dealing with the duty list but was unable to deal with it myself. It is the Christmas week of course. It was referred out to Federal Magistrate Connolly in the hope that he would have sufficient time to deal with it, but it turned out to take longer then was first apparent and it has come back to me. But it still has to be dealt with in a relatively brief amount of time.
I have not been able to ascertain from the material before me the wife's age. But it is apparent that she is quite young and certainly able-bodied. She is an Australian citizen, as I have said, and there is nothing in the material to suggest that she is unable by reason of age or physical or mental incapacity to support herself for appropriate gainful employment. Subparagraph (c) is for any other adequate reason. Subparagraph (a) is plainly not applicable because there are no children of the marriage.
I bear in mind section 75(2) and all the provisions which are contained there, but I can see no basis for a finding under section 72 of a liability on the husband to maintain the wife.
Now, turning to the husband's situation, as I have said, there is a dispute about his financial circumstances. That will have to await a final hearing. The determination of all of that will have to await a final hearing in April. The dispute is the amount of money which is available to him from his own sources or from other sources. I should say there is also a dispute about the wife's financial situation. But concentrating on the husband, if maintenance was to be ordered, even on an urgent basis, there has to be evidence of an ability to pay some source of funds. The only material I have before me about the husband's income is casual employment earning $320 per week and out of that he is meeting or partly meeting a substantial mortgage payment.
Therefore on the other side of the ledger, the evidence suggests that the husband has no capacity to pay maintenance even if a basis for it could be established. So for those dual reasons I can see no basis for ordering urgent spousal maintenance.
The wife's second application is for an order that she have sole use and occupation of the home. The circumstances in which such an order is often made is when there is one party to a marriage who has the care and control of children. That party is out of the home and the other party is in the home. In those circumstances the balance of convenience favours ordering that the party caring for the children have occupation of the home.
I can see no basis at all for ordering that the wife have sole occupation of the home. The wife puts it that she has nowhere to live, but I turn back to the fact that she is on her own. She seems young and able-bodied. The husband, on the other hand, if he was out of the home, has only $320 per week. Presumably he would have to stop paying the mortgage because he would have to find accommodation elsewhere. That would put the house at immediate risk. I can see no basis for making an order that the wife have sole use and occupation of the home.
I should add that unfortunately the wife seems to have misconceived the nature of what a court can do in these circumstances. I can appreciate that it is distressing for her the current circumstances and whatever has occurred in the breakdown of the marriage. But a court can only exercise the powers that it has under the Family Law Act and it can only do them within the confines of the time which is available and the time which is necessary to enable cases to be prepared for final hearing. So this is a situation where there is a matrimonial home or a former matrimonial home. There is a dispute about what contributions were made. There is a dispute about what assets parties have. There is a dispute about withdrawals from bank accounts and for what purpose, dispute about the incurring of debts. All of those things can only be resolved in a full hearing which has been fixed for 24 April. They cannot be resolved as an interim matter today.
To deal with what occurs before there can be a final resolution there are various provisions in the Family Law Act, one of which is the spousal maintenance provisions which I have dealt with. Another is the injunction power that a court exercising family law jurisdiction has. That injunction power can be used to determine whether one party might occupy the matrimonial home to the exclusion of the other pending final resolution. That is what the Wife seeks. I have dealt with that application.
The wife's approach seemed to be this: that the matrimonial home is an asset which could be rented out to earn income for both parties. The husband, as she sees it, is not doing it or he should be doing it. If he was doing it he would have more than enough money to pay her $300 a week. On the other hand, if he was put out of the house and she had possession of it she could earn enough money to pay him $300 a week.
Now, it could be said that there is some sense and logic in that, but when marriages have broken down and parties are in dispute often sense and logic goes out the window. But the Family Law Act does not say that a court is completely at large in what it can do and can make orders which it thinks in any particular situation might be sensible and logical if the parties could agree to them. The Family Law Act gives certain powers to a court and they are the only powers that I, as a member of a court exercising family law jurisdiction, can exercise. As I have said, I can see no basis under the provision of the Family Law Act for ordering maintenance and I can see no basis under the provisions of the Family Law Act for ordering that the wife have sole occupation of the home.
Consequently, I will dismiss interim applications, but I will fix the wife's form 12 application filed on 17 December for final hearing on 24 April 2003.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Kwong S

Date: 28 October 2003