VIGANO & HOUGHTON

[2012] FamCA 925

FAMILY COURT OF AUSTRALIA

VIGANO & HOUGHTON [2012] FamCA 925

FAMILY LAW – SPOUSAL MAINTENANCE – Interim application for spousal maintenance – Where wife’s income exceeds expenses – Where the wife has not established that she is unable to maintain herself – Threshold not met – Application dismissed.

FAMILY LAW – COSTS – Interim costs application – Where there is no evidence of funds from which the husband could meet an order for interim costs in favour of the wife – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Vigano

RESPONDENT: Mr Houghton

FILE NUMBER: PAC 528 of 2008

DATE DELIVERED: 4 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 4 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

Orders

IT IS ORDERED

1. That the application of the wife for interim spousal maintenance and the application for interim costs filed on 13 March 2012 be dismissed.

2. That the matter be listed for a telephone procedural hearing on 9 November 2012 at 9.00am before Registrar George.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vigano & Houghton 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 SYDNEY

FILE NUMBER: PAC 528 of 2008

Ms Vigano

Applicant

And

Mr Houghton

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court concern interim orders sought in an application filed by the wife, Ms Vigano, arising out of her marriage to the husband, Mr Houghton.  By way of interim orders, the wife seeks that the husband pay to her spousal maintenance in the sum of $1,000 per week and that he pay, by way of interim costs, the sum of $88,000.

2. The substantive application before the court is an application for property settlement in circumstances where it is not disputed that, on 10 January 2009, a final divorce decree and orders for property settlement were made by the court of B Town, C State in the United States of America.  The application which I deal with today is the interim application, but I strongly advise the wife to seek advice in relation to her substantive application.

3. No application has been made by the wife to seek leave, pursuant to section 44(3) of the Family Law Act, to bring an application for spousal maintenance out of time however, I do not dismiss the application on that basis. Rather, the wife, in her financial statement, deposes to an income, from her own employment, of $1403 per week. This income does not include the amounts which she receives by way of family tax benefit or which she receives by way of child support.

4. In her financial statement, she states that she has expenses of $1240 per week, but those expenses include $528 per week which are the expenses of the children.  It is clear, on the authority of the Full Court of the Family Court in Stein & Stein (2000) FLC 93-004 that in an application for spousal maintenance the wife is not entitled to include as her necessary expenses those expenses which relate to the children.

5. Therefore, for the purposes of this application, the wife’s expenses are $712 a week against an income of $1403 a week.  In order to qualify for an order for spousal maintenance, the wife must establish that she is unable to maintain herself adequately.  In circumstances where her income substantially exceeds her expenses, she does not meet the threshold, and the application for spousal maintenance is dismissed.

6. In relation to the application for interim costs, setting aside the disquiet which I feel in relation to the merits of the final orders sought, there is no evidence of any fund from which the husband could meet that application, and therefore, that application is also dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 October 2012.

Associate:

Date:  30 October 2012