Xuereb and Xuereb (No. 2)

In the Family Court of Australia at Melbourne, Justice Dessau presided over proceedings between Mr Xuereb (applicant husband) and Mrs Xuereb (respondent wife). The dispute concerned the validity of the parties' marriage and its implications for the wife's application for spousal maintenance and the parties' competing applications for property division. The husband had sought to have the validity of the marriage determined as a preliminary issue, which would then inform whether the spousal maintenance application could proceed.

The central legal issue before the court was whether the validity of the marriage affected the court's jurisdiction to hear the wife's spousal maintenance application and the property division claims. The court was also required to determine the appropriate costs order arising from the day's proceedings.

Justice Dessau reasoned that the husband's concession, made pursuant to sections 71 and 4(ca) of the *Family Law Act 1975* (Cth), that the validity of the marriage did not impact the court's jurisdiction to determine spousal maintenance or property division, rendered the husband's primary application misconceived. The court found that the attendance and arguments presented on that day were unnecessary and had resulted in a waste of time and costs. Despite the husband's submissions that costs should be deferred until the determination of the spousal maintenance or marriage validity issues, Justice Dessau concluded that the costs incurred on that specific day were wasted and should be borne by the husband. The court noted the wife's lack of legal aid and the husband's control over substantial matrimonial assets as factors in its decision.

The court ordered that paragraphs 1 and 3 of the husband's Response filed on 18 April 2007 be dismissed. Furthermore, the husband was ordered to pay the wife's costs of the day, fixed at $1760, within 28 days. The court also directed the husband to file and serve an application pursuant to section 113 of the Act within 28 days, with the wife to file and serve her response thereafter, and listed the matter for a directions hearing.