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

1. 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.

2. 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

1. 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

1. 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

1. 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?

2. In considering these issues I have had regard to:-

   a)the material as marked on the Court file;

   b)the oral submissions of the parties; and

   c)Part VIII Family Law Act 1975, and in particular, section 77.

3. Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.

4. Before considering the issues, it is necessary to consider the relevant facts:-

   a)The wife is aged 39 and the husband is aged 37.

   b)The parties married in 2003. 

   c)There were two children of the marriage, X aged 10½ and Y aged 8.

   d)The parties separated in September 2012. 

   e)At the time of separation the property pool consisted of a house property at Property W, which is subject to a mortgage, two motor vehicles, some bank accounts, household effects and superannuation.  There were debts which consisted of the mortgage, a line of credit and credit cards.

   f)At the time of separation, the wife remained in the Property W property with the children and the children have since spent weekend time with the father. 

   g)As the wife is not working, the wife since separation has been reliant on Centrelink payments and is expecting child support payments.

   h)The husband has continued to work as a (occupation omitted).

   i)In November 2012 the wife and the children travelled to (country omitted) to visit the wife’s family for two months. 

   j)In April 2013 the wife and the children travelled to (country omitted) for one week’s holiday. 

   k)In April 2013 the wife was informed that the Property W property, which is in the sole name of the husband, was subject to a contract of sale which was due to settle in June 2013. 

   l)In April 2013 the wife commenced proceedings for a property division. The wife in her supporting affidavit identifies what could only be described as a small pool, although details of liabilities were unknown.  Attached to the affidavit is a copy of the contract of sale for the Property W property, which indicates settlement to occur on 20 June 2013.

   m)In response documents filed by the husband in early June 2013, details were provided which support that there is little, if not any, equity in the Property W property and that the only property that may be capable of being divided is superannuation of over $100,000.  Further, the husband included children’s issues and is seeking shared care arrangements.

   n)On 5 June 2013 interim consent orders were reached whereby a caveat placed on the Property W property by the wife be removed, that any balance proceeds of sale be held in trust and that the wife vacate the Property W property by 18 June 2013.  A child inclusive conference was also ordered.  As spousal maintenance was raised as a potential issue, an interim hearing was allocated for 14 June 2013. 

   o)On 12 June 2013 the child inclusive conference was conducted and a written Memorandum to Court was issued.

   p)At the interim hearing the wife informed the Court that she would be moving in temporarily with friends when the sale goes through as she has no money to obtain her own property. 

   q)At the interim hearing, the husband informed the Court that there was now a shortfall to cover the mortgage upon the sale of the Property W property, although the extent of such shortfall at the time of writing this judgment was unknown and that the husband had obtained a $20,000 loan to cover the shortfall and any outstanding legal costs pertaining to the sale.

5. It is in the context of these facts that an application by the wife has been made to seek urgent spousal maintenance.

Has the need for urgent spousal maintenance been established by the wife?

1. Before determining this issue, consideration must be had to the law.

2. Section 77 Family Law Act1975 provides that if a party can establish immediate need of financial assistance but it is not practical to determine immediately what order is to be made then the Court can order the payment of a periodic sum or other sum as the Court considers reasonable, pending disposal of the proceedings. 

3. The Full Court in Chapman & Chapman (1979) FLC 90-671 at 78569 described orders being made under section 77 as having:

   “…particular characteristics about them.  They were intended to deal with urgent situations.  They are normally relevant for a defined or a definable period of time and they are in the nature of stop-gap orders.”

4. As observed by Brown FM (as his Honour was then known) in Bonney & Bonney (2005) FMCAfam 546 at [5] applications for urgent spousal maintenance “necessarily invite a somewhat ad hoc procedure and a somewhat wider scope of discretion than is ordinarily the case” and at [33] “….such applications have to be approached with a degree of both expediency and expedition.”

5. The term “immediate need for financial assistance” is not defined in the legislation. 

6. The case law does little to assist in the definition with Scarlett FM (as His Honour was then known) in Grimshaw-Grieves & Grieves (2011) FMCAfam 125 at [22], stating “it is very much a factual issue” as to whether such a need exists.

7. The factual issues here are as follows:-

   a)The parties separated in September 2012.

   b)Since that time the wife has had exclusive use of the Property W property. 

   c)By April 2013 the wife knew that her accommodation situation was only temporary and that vacation of the Property W property would need to occur by June 2013.

   d)Since April 2013 the wife has done nothing to improve herself financially, such as obtain employment, even on a part-time basis, or put in place arrangements for permanent alternate accommodation.

   e)By early June 2013 the wife became aware that there was little, if any, equity in the Property W property and she also became aware of the husband’s alleged financial situation, which showed that payment of any money to her on a regular basis may not be possible. 

   f)Since early June 2013 the wife has not attempted to obtain employment or secure any form of alternate housing.

   g)That as a consequence of the sale of the Property W property, the wife is now required to stay with a friend at (omitted) but this is only a temporary measure. 

   h)The wife has no savings nor does she have property capable of being sold in her possession.

   i)The husband has not put forward any choices or options as to how the wife may be able to accommodate herself and, more importantly, accommodate the children once the sale takes place.

Conclusion

1. In conclusion, I find that the wife has established an immediate need for financial assistance but only in respect to rehousing herself and the children.

2. Immediate need for financial assistance in respect to the day-to-day needs for herself and her children, such as food, clothing, petrol, has not been established and does not attract the urgency as is required of this type of application.

3. I make this finding based on the wife’s material where, with her Centrelink payments and upcoming child support, there will sufficient funds to meet day-to-day living expenses other than housing. 

4. It is open to the wife in the future to bring an interim application for spousal maintenance pursuant to sections 72 and 74 Family Law Act 1975 where a more comprehensive investigation into the whether spousal maintenance is payable can be undertaken by the Court. 

5. An application for urgent spousal maintenance, as is the case in this matter, is very different to that of an interim spousal maintenance and the differences in the two applications are the subject of much case law and the comments of Nygh J in Ashton & Ashton (1982) FLC 91-285, and Pritchard & Pritchard (1982) FLC 91-286 are useful in that regard.

6. As to the amount required by the wife to meet her immediate financial need, I find that her immediate need is for the payment of the bond and several weeks’ rent. 

7. This will enable the wife time to establish herself and the children in the new household and for the wife to investigate part-time employment or alternative living arrangements.  

8. The estimate provided by the wife as to her rental in her June affidavit, however, was unreasonable, as the estimates relate to four bedroom houses when a three bedroom house or unit would be sufficient.

9. I therefore find that what is required is the payment of the bond and six weeks’ rent for a three bedroom unit or house, with such rent not to exceed $380 per week.

10. I find that this would be sufficient to meet the wife’s immediate need. 

Does the husband have the capacity to meet the wife’s needs?

1. The husband claims that he does not have the financial means to meet any order for urgent spousal maintenance.

2. I find that there are four possible options available to the husband to meet this immediate need for the wife:-

   a)There is a possibility of surplus of monies from the $20,000 loan obtained to meet the shortfall for the sale of the Property W property and associated legal costs.

   b)The husband has demonstrated the capacity to borrow monies and could therefore organise a loan for this amount.

   c)The husband makes reference at [13] of his 14 June 2013 affidavit to a credit owing to him of $7,000 due to salary sacrificing.

   d)There are some moneys sitting in bank accounts in the husband’s name.

Conclusion

1. I therefore find that the husband has capacity to pay the bond and six weeks rental on a three bedroom property with rental of $380 or less per week in the Property W area or surrounding areas.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Associate: 

Date:  2 July 2013