Tamson and Moritz

The wife sought a variation of a spousal maintenance order made by Foster J. The husband contended that the wife had failed to disclose material facts to the Court, specifically regarding the date of separation and the existence of a prior financial agreement. The wife argued that the parties were not actually separated, and therefore the Court lacked jurisdiction to make the original orders.

The primary legal issues before the Court were whether material facts had been withheld from the Court, and whether the Court had jurisdiction to make the original spousal maintenance orders given the wife's assertion of non-separation. The Court also considered whether the wife had satisfied the requirements of s 90SI(3) of the relevant legislation to permit a variation of the existing order.

Foster J rejected the wife's contention that the parties were not separated, noting that she herself had represented a date of separation in a joint application for consent orders. The Court held that the power to make a maintenance order is consequent upon the breakdown of a de facto relationship, which can occur even if parties continue to reside in the same home. Furthermore, the Court found that the existence of a previously signed financial agreement was not a material fact that had been withheld, particularly as it was common ground that the parties had subsequently signed a termination agreement. Consequently, the wife failed to satisfy the Court that the provisions of s 90SI(3) were enlivened to allow for a variation of the existing order.

The wife's application for variation of spouse maintenance was dismissed.