Lobb & Galanis [2025] FedCFamC2F 1097 (8 August 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application for review of, relevantly, order 8 that was made by a Registrar on 13 June 2025 for the payment of spousal maintenance under s 90SE of the Family Law Act 1975 (Cth) ("the Act") in relation to a de facto relationship. Order 8 is as follows:

8. That commencing 18 June 2025, the Respondent pay to the Applicant the sum of $760 per week by way of periodic spousal maintenance by way of bank transfer to her nominated account.

1. The applicant de facto wife ("the de facto wife") is still in occupation of the matrimonial home that was acquired by the respondent de facto husband ("the de facto husband") well before the brief four-year relationship. It is not apparent to the Court as to why there has been no application brought forward for the immediate sale of the matrimonial home and for the removal from occupation of the de facto wife. On the evidence currently before the Court, it is not apparent that either party has a capacity to pay out the other, given the mortgage on the property.
2. When the matter was first identified before the Court, the Court raised the possibility that what should happen is the property should forthwith be sold and there should be orders for vacation of the premises. The Court was informed that the de facto husband wants an opportunity to be able to pay out the amount. The de facto wife contends that the four-year relationship would justify a 45%/55% allocation, the 45% in favour of the de facto wife. It is not immediately apparent to the Court how that percentage would necessarily be appropriate, just and equitable for such a short period of relationship.
3. Be that as it may, there is no application that is properly before the Court today for the immediate sale of the property and for immediate vacation. All that is before the Court today is a review application in respect of a maintenance order. This is a de novo hearing. There is no dispute as to the de facto wife's contention that the proceedings were commenced within time under s 46(5) of the Act or as to the requirements under s 90SD and s 90DSB of the Act.
4. The de facto wife, notwithstanding the most recent financial statement of the de facto husband and his affidavit, wished to contend that he had a capacity to work and pointed out that there had been a drawdown of funds on the matrimonial home that has been dissipated. Those matters in this case where the de facto husband's apparent income, property and financial resources as disclosed in his most recent financial statement, are matters that may have an impact in final hearing, as may an argument about disclosure. On the evidence before the Court, taking into account s 90SF of the Act, the Court is not satisfied that the de facto husband is reasonably able to do so within the statutory requirement for the payment of maintenance.
5. The de facto wife wished to contend that there was a deliberate failure by the de facto husband to go and seek work. That is inconsistent with the de facto husband's affidavit. The de facto wife wished to contend that he had no physical ailments that prevented him from going out and working. At the current time, his income is in the order of $350 a week. The de facto husband is living in a home of someone else, together with his son, apparently in the same room. It is surprising that there has been no application made of the kind that the Court has already identified in respect of the vacation and sale of that matrimonial home.
6. To the extent that it was contended that the Court should make some finding of a capacity to derive income and a deliberate decision not to do so, the Court is not prepared to make such finding. The fact that the de facto husband was in a successful film a little while ago does not change his current financial circumstances. The Court is not satisfied the current financial circumstances of the de facto husband identify a proper basis upon which this Court could find that the threshold issue in the principal informed by the matters in s 90SF(3) of the Act that the relevant party is reasonably able to do so is made out. The Court finds no order for maintenance of the de fact wife is proper in this case.
7. It is for these reasons; the Court makes to above orders.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.