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Blevins & Blevins [2019] FCCA 1923

Blevins & Blevins [2019] FCCA 1923

Wednesday 9th of October 2019
By: Casey Ieraci, Special Counsel, Accredited Family Law Specialist, Coote Family Lawyers

I would refer you to anyone going through a difficult divorce. 

The case of Blevins highlights a party’s ability to bring a further application for spousal maintenance some twenty years after separation and in circumstances where final orders were made in 2009

Section 81 of the Family Law Act 1975 (FLA) is not a barrier to a party making an application for spouse maintenance, even some 20 years after separation, if the applicant can satisfy the requirements for the making of such an order. Additionally, Section 44 of the FLA will not, of itself, prevent an applicant from pursuing a spouse maintenance claim out of time (12 months after a Divorce Order has been made)

  • In this case, an original spousal maintenance order was made in favour of the wife in 1999, such that until 2008, the husband would pay the wife periodic spousal maintenance in the sum of $750 per calendar month.
  • Upon the expiry of that Order, and some nine years after a Divorce Order was made, the wife brought a further application to the Federal Circuit Court seeking a lump sum spousal maintenance order on the basis that she remained unable to support herself without the assistance of an income protection benefit.  At the time, the wife was receiving a disability pension.
  • Final Orders were made in 2009, by consent, providing that the husband pay the wife the sum of $275,000 by way of lump sum spousal maintenance.  There was a notation to the orders that provided that the orders would finally sever the financial relationship between the parties. The husband complied with his obligations under those orders. He assumed that his financial relationship with the wife was therefore concluded.
  • In March 2019, the wife filed a further Initiating Application seeking orders for ongoing periodic spousal maintenance in the sum of $400 per week on the basis that she was no longer able to receive a disability pension from Centrelink.
  • The Husband filed a response seeking that the wife’s application be dismissed on the following grounds:
    • The husband complied with his obligations pursuant to the 2009 orders, and pursuant to Section 81 of the FLA the wife was prevented from making any further application; and
    • Section 44 of the FLA prevented the wife from making a further application in circumstances where the parties have been divorced for some 20 years. If leave were to be granted to the wife, the husband would suffer financial hardship.
  • In a Judgment released by Judge Baker, the husband's response was dismissed, and it was considered appropriate that:
    • The Wife could proceed with her Application for spousal maintenance and Section 81 of the FLA would not act as a barrier to her bringing a fresh application, so long as she could show that she continued to have a need to receive spousal maintenance, and the Husband had the capacity to pay; and
    • The wife was granted leave to proceed with her application out of time pursuant to Section 44(3) of the FLA.

Coote Family Lawyers are recognised as one of the top family law firms in Melbourne.  If you have any queries regarding your own or your former spouse’s maintenance obligations, please contact one of our team of accredited family law specialists on (03) 9804-0035.

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