Owen and Lane

In *Owen & Lane*, the Family Court of Australia considered an application by the wife for spousal maintenance and a further distribution of capital from a controlled monies account. The application for spousal maintenance was made approximately two years out of time, and the wife sought leave to proceed with this application. The property division proceedings between the parties had been ongoing for several years and were part-heard, with a further hearing adjourned pending the outcome of separate litigation against both parties in the NSW Consumer, Trader and Tenancy Tribunal.

The primary legal issues before the Court were whether to grant the wife leave to commence spousal maintenance proceedings out of time, and whether to order a further distribution of capital from the controlled monies account. For leave to be granted, the Court was required to be satisfied that hardship would be caused to the applicant if leave were not granted, or that the applicant was unable to support herself without an income-tested pension, allowance, or benefit at the time the limitation period expired. The Court also considered whether it was just and equitable to accede to the wife's request for further capital distribution, given the substantial litigation pending against the parties.

The Court refused to grant leave for the spousal maintenance application, finding that the wife had not met the evidentiary burden required to establish hardship or her inability to support herself. Despite acknowledging the wife's immediate financial difficulties, the Court determined that the prospects of her spousal maintenance application succeeding if leave were granted were unlikely, given the husband's limited capacity to contribute and the wife's potential to gain employment. Furthermore, the Court noted the absence of any explanation for the significant delay in bringing the spousal maintenance claim, despite the wife having been represented by multiple legal practitioners during the period when the application could have been brought as of right. Regarding the application for further capital, the Court found it would not be just and equitable to order a distribution of nearly $100,000 from the controlled monies account, particularly as the quantum of damages claimed in the pending CTTT litigation significantly exceeded the remaining capital. Such a distribution could prejudice the husband's property division entitlements and potentially leave him solely responsible for any shortfall in the CTTT proceedings.

Consequently, the Court dismissed the wife's application for spousal maintenance and her application for a further distribution of capital. The husband's oral application for orders pursuant to s 118 of the Family Law Act 1975 was also dismissed, as he did not press the point during the hearing.