Rickert and Pitt - [2013] FCCA 693

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICKERT & PITT

[2013] FCCA 693

Catchwords:
FAMILY LAW – Urgent spousal maintenance – where the major asset of the marriage – a house at Property W – has been sold leaving the wife and children with no where to live – where wife is not working – where husband is working but is in financial difficulty – where wife has established an immediate need for financial assistance pursuant to s.77 to assist her in rehousing herself and children – where immediate need not established for periodic payment of spousal maintenance from the husband for day to day expenses – where there are several options available to the husband to raise the monies necessary to pay a bond and six weeks rent for the wife – held that the husband pay for the bond and six weeks rent for wife – where wife needs to obtain employment or consider alternate housing.

Legislation:

Family Law Act 1975 (Cth), ss.72, 74, and 77

Chapman & Chapman (1979) FLC 90-671
Bonney & Bonney (2005) FMCAfam 546
Grimshaw-Grieves & Grieves (2011) FMCAfam 125
Ashton & Ashton (1982) FLC 91-285
Pritchard & Pritchard (1982) FLC 91-286

Applicant:

MS RICKERT

Respondent:

MR PITT

File Number:

BRC 2805 of 2013

Judgment of:

Judge L. Turner

Hearing date:

14 June 2013

Date of Last Submission:

14 June 2013

Delivered at:

Brisbane

Delivered on:

21 June 2013

REPRESENTATION

Solicitors for the Applicant:

Biggs Fitzgerald Pike

Counsel for the Respondent:

Mr Galloway

Solicitors for the Respondent:

McPhee Lawyers

ORDERS

That upon the Wife securing a lease for a rental property in Property W Queensland or surrounding areas at $380 per week rental or less, the Husband pay by way of urgent spousal maintenance the bond for such property together with six (6) weeks rent in advance.
That in the event the wife wishes to pursue an application for interim spousal maintenance then an Application in a Case, an updated Financial Statement with Part N completed and a supporting Affidavit must be filed.

IT IS NOTED that publication of this judgment under the pseudonym Rickert & Pitt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 2805 of 2013

MS RICKERT

Applicant

And

MR PITT

Respondent

REASONS FOR JUDGMENT

Ex-tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

I have before me an urgent application made by the wife pursuant to section 77 Family Law Act 1975 for spousal maintenance, either in a lump sum or by way of periodic payment.

Issues

The issues that I am required to determine are:-
a)Has has the need for urgent spousal maintenance been established by the wife?
b)If so, does the husband have the capacity to meet such need?
In considering these issues I have had regard to:-
a)the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rickert and Pitt

Details

AGLC: Rickert and Pitt [2013] FCCA 693
Case: [2013] FCCA 693
Decision Date: 21 June 2013

CaseChat Overview and Summary

This matter came before Judge L. Turner in the Federal Circuit and Family Court of Australia. The dispute concerned an application for spousal maintenance. The wife sought urgent spousal maintenance to secure rental accommodation.

The court was required to determine the conditions under which urgent spousal maintenance would be paid to the wife for the purpose of securing a rental property. The court also considered the procedural requirements for the wife to pursue an application for interim spousal maintenance.

The court ordered that upon the wife securing a lease for a rental property in Property W, Queensland, or a surrounding area, at a rental of $380 per week or less, the husband would pay the bond for that property and six weeks' rent in advance by way of urgent spousal maintenance. The court further stipulated that if the wife wished to pursue an application for interim spousal maintenance, she must file an Application in a Case, an updated Financial Statement with Part N completed, and a supporting Affidavit.

Orders

Orders of the court

That upon the Wife securing a lease for a rental property in Property W Queensland or surrounding areas at $380 per week rental or less, the Husband pay by way of urgent spousal maintenance the bond for such property together with six (6) weeks rent in advance.

That in the event the wife wishes to pursue an application for interim spousal maintenance then an Application in a Case, an updated Financial Statement with Part N completed and a supporting Affidavit must be filed.

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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