WIFE SEEKS FOR URGENT SPOUSAL MAINTENANCE
Bond & Dalton [2020] FCCA 2177 (7 August 2020)
This case involves the wife seeking for urgent spousal maintenance against the husband while the husband contends that the wife’s application is in fact an application for interim spousal maintenance.
Facts:
Wife sought for the urgent maintenance. She deposes to her income being limited to Centrelink entitlements and child support, the former being an amount that the court is required to exclude from consideration; and 2. She deposes to being unable to find employment in recent times despite numerous applications.
The de facto wife deposes that each of her parents are meeting her weekly expenses in the amount of $115 per week for her father and $86 per week for her mother (a combined total of $201 per week), which are amounts insufficient to meet the totality of the de facto wife’s asserted weekly shortfall with reference to either of her financial statements;
The de facto husband opposes the application and asserts that the application is fundamentally flawed as it is not, and never has been, an application for urgent maintenance. Rather, he asserts that the application is really an application for interim maintenance, which is an application that the de facto wife has not made, and was only made orally during the course of the present hearing in response to the criticisms made during submissions on behalf of the de facto husband.
Issue: Should the court grant the wife’s application for urgent spousal maintenance?
Law:
- Family Law Act 1975 74, 77, 90SE, 90SG.
Analysis:
While the court might assume that the de facto wife is presently only able to make ends meet with the assistance of her parents, it is not appropriate for the court to make those assumptions in the absence of cogent evidence from the de facto wife. Moreover, where the de facto husband asserts that the de facto wife is deriving an income from her own exertions, given all of the matters to which the court have already referred, it is impossible for the court to rule out the possibility that the wife is indeed meeting some of her expenses (whatever they might be) from income derived from her own exertions.
In addition, and while the court accepts that the generosity of the de facto wife’s parents is not one that displaces the obligation of the de facto husband to support the de facto wife if he is in a position to do so, it cannot be said that the wife has made out any basis for urgency requiring the court to deal with the matter effectively summarily in an urgent hearing.
For all of these reasons, the court declines to deal with the matter on an urgent basis and instead propose to list the matter for a more fulsome enquiry at an interim hearing, which is to include oral evidence.
Conclusion: Court orders that the Applicant’s application for urgent maintenance be dismissed.
