Rice and Rice and Ors

[2013] FamCA 699

FAMILY COURT OF AUSTRALIA

RICE & RICE AND ORS [2013] FamCA 699

FAMILY LAW – Section 77 urgent spousal maintenance

Family Law Act 1975 (Cth)

APPLICANT: Ms Rice

1^ST RESPONDENT: Mr Rice

2^ND RESPONDENT: Mr A Rice

3^RD RESPONDENT: Rice Pty Ltd

4^TH RESPONDENT: Rice Pty Ltd Atf The Rice Trust

FILE NUMBER: MLC 11324 of 2012

DATE DELIVERED: 9 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE 1ST RESPONDENT: Mr Geddes QC

SOLICITOR FOR THE 1^ST

RESPONDENT:

Kenna Teasdale Lawyers

Orders

1. That all outstanding interim applications are adjourned in respect of spousal maintenance to 20 August 2013 at 10.00am.

2. That the husband pay the wife $420 per week by way of urgent spousal maintenance until the return date.

3. That BY CONSENT there be orders in accordance with the interim minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

4. That the solicitor for the applicant husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

5. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rice & Rice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11324 of 2012

Ms Rice

Applicant

And

Mr Rice

1^st Respondent

And

Mr A Rice

2^nd Respondent

And

Rice Pty Ltd

3^rd Respondent

And

Rice Pty Ltd Atf The Rice Trust

4^th Respondent

REASONS FOR JUDGMENT

1. This is an application which, at 10 to 5 on a Friday evening after a long day in a duty list, is described as an urgent spousal maintenance claim.  As I remarked, the proceedings have been out of the system between January and July at which stage, the registrar was told that a mediation had failed to resolve the matter and therefore it needed to come into the duty list.  Just exactly how matters of finances have been dealt with over that six month period, I am not entirely sure.

2. Section 77, as everybody has acknowledged, is designed to cover very short term periods of time in people’s lives.  I am not sure what has happened over the last few months, but the wife is now saying that she is in desperate circumstances.  I am not at all comfortable in saying that I know what the financial circumstances of the husband are and no doubt they need to be tested.

3. In a s 77 application, as the Full Court said in Redman (1987) FLC 91-805, 11 Fam LR 411, the Court can do the best it can to ensure that people’s lives are not completely ruined and it is not intended that the maintenance be subsistence level.  There must be some evidence upon which the court can determine some figure.  The best evidence in this case seems to me to be to look at what the wife actually needs.  She claims in her financial statement sworn on 7 August, that she spends $846.  I am aware of the fact, obviously, that that is an average over the year because people do not necessarily spend those same sums of money each week.  If I take out the items that she does not necessarily, in my subjective judgment, need every week but which obviously would enable her to live reasonably comfortably in the meantime, it seems to me that she can live on somewhere around $200 per week.  The dilemma with that problem, of course, is that the payment that is currently being made – or has been currently made – by the husband of $400 per week, was intended to cover the family because there is no child support assessment at this stage. 

4. On the basis that I am unaware of what the husband will also be paying of the support of the children when he has them, it seems to me that I can look at the other column of what the wife would otherwise be obliged to provide to support the children – it being her primary obligation to support them.  The figures there suggest that she needs $240 per week to support the children, leaving out the items that recur from time to time, such as clothing and holidays and entertainment. 

5. On the basis that she needs $180 for herself and $240 for the children, it seems to me in the short term the husband should be paying $420 per week. 

6. I propose to adjourn the matter to 20 August 2013 before me at 10 o’clock for an interim hearing on spousal maintenance and in the meantime the husband pay $420 per week by way of urgent spousal maintenance; the first of those payments can be made on a day that if there can’t be agreement, I will make it on Monday morning.  I will put a notation on the order that the husband, through his senior counsel, has indicated that the wife’s petrol will be covered in the meantime. 

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 August 2013.

Associate:

Date:  3 September 2013