Xuereb and Xuereb

In the Family Court of Australia at Melbourne, Justice Cronin considered an application by Mrs Xuereb (the applicant wife) against Mr Xuereb (the respondent husband). The primary dispute concerned the wife's ability to obtain certain maintenance orders, specifically relating to child support and spousal maintenance, and the court's jurisdiction to make such orders.

The court was required to determine whether it possessed jurisdiction to make orders under section 139 of the *Child Support (Assessment) Act 1989* (Cth), and whether section 66E of the *Family Law Act 1975* (Cth) precluded the making of such orders when an administrative assessment under the *Child Support (Assessment) Act* was possible. The court also considered the wife's oral application for urgent spousal maintenance and the appropriate orders regarding costs.

Justice Cronin reasoned that section 139 of the *Child Support (Assessment) Act* was not a standalone head of power and that any order would need to fall within section 140 of that Act. The judge concluded that section 139 was intended as a temporary measure pending an administrative assessment. Crucially, section 66E of the *Family Law Act* mandates that a court must not make a child maintenance order if an application could be made under the *Child Support (Assessment) Act*. Given that an administrative assessment was possible, the court found it lacked jurisdiction to make the orders sought under section 139. The oral application for spousal maintenance could not proceed as the husband was unprepared.

Consequently, the court adjourned the wife's application for urgent spousal maintenance and ordered that she file a Form 2 application with supporting material by 4 April 2007, with the husband to file a Form 2A response by 18 April 2007. The court further ordered that the wife pay the husband's costs for the day, with the amount to be agreed or taxed, and payment terms to be determined by the trial judge. The matter was certified as reasonably requiring the attendance of counsel.