BARRINGTON& DOWNTON - [2015] FamCA 426

FAMILY COURT OF AUSTRALIA

BARRINGTON& DOWNTON

[2015] FamCA 426

FAMILY LAW – ENFORCEMENT – Debt arising under a deed approved pursuant to s 87 of the Family Law Act 1975 – Where the wife seeks a finding that moneys are owing to her under the deed and seeks orders to enforce payment – Where the husband seeks a declaration that the deed is unenforceable – Where proceedings were initially commenced in the Supreme Court and transferred to this Court – Consideration of s 87 of the Family Law Act 1975 – Where the adversarial experts prepared a document identifying the areas of dispute in relation to the amount owing under the deed – Where the parties dispute the attribution of payments made by the husband against his liabilities under the deed – Where the experts were not in a position to express opinions about which of the contentions of the parties should be preferred – Where the Court could not find that the husband owes the wife a specific amount pursuant to his obligations under the deed –Where the evidence suggests that the husband does not have capacity to pay the wife – Where the wife’s delay in taking enforcement action and her agreement to changes in the obligations in the agreement mean that the Court should not make orders to enforce the agreement – Where the Court dismissed the wife’s application and declared that the deed is unenforceable.

Family Law Act 1975 (Cth) ss: 87
Family Law Amendment Act 2000 (Cth)
Family Law Rules 2004 r: 20.01, 20.03, 20.04, 20.05, 20.06 & 20.07.

APPLICANT:

Ms Barrington

RESPONDENT:

Mr Downton

FILE NUMBER:

PAC

3420

2012

DATE DELIVERED:

9 June 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

10 – 12 December 2014

REPRESENTATION

APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

Mr Ahmad

SOLICITOR FOR THE RESPONDENT:

Delta Law

Orders

The Court Noted that the application of the wife for orders in terms of paragraphs 4 and 5 of the orders sought in her Case Outline document dated 5 December 2014 is withdrawn.
Otherwise the application of the wife set out in that document, together with her oral application made on 12 December 2014 for an order in the alternative to the orders sought at paragraphs 1 and 2 of the Case Outline, being an order that the husband pay her $2,500 per week for a period of three years, are dismissed.
The Court declared that the agreement between the parties that was approved under section 87 of the Family Law Act 1975 (Cth) on 11 November 1997 is unenforceable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barrington & Downton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 3420 of 2012

Ms Barrington

Applicant

And

Mr Downton

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BARRINGTON& DOWNTON [2015] FamCA 426
Case: [2015] FamCA 426
Decision Date: 9 June 2015

CaseChat Overview and Summary

The parties to this matter were the wife and the husband. The wife sought various orders, including financial relief, which were ultimately dismissed by the court. The court also declared an agreement previously approved under section 87 of the *Family Law Act 1975* (Cth) to be unenforceable.

The primary legal issues before the court concerned the wife's applications for financial orders and the enforceability of a section 87 agreement. The wife had withdrawn some of her initial claims but proceeded with others, including an alternative claim for periodic spousal maintenance.

Loughnan J found that the section 87 agreement was unenforceable. While the specific reasoning for this declaration is not detailed in the provided text, the court's decision to dismiss the wife's applications suggests that the court did not find grounds to grant the financial relief sought, potentially due to the unenforceability of the prior agreement or other factors not elaborated upon.

Consequently, the court ordered that the wife's applications be dismissed, save for those she had withdrawn. The court further declared the section 87 agreement between the parties to be unenforceable.

Orders

Orders of the court

The Court Noted that the application of the wife for orders in terms of paragraphs 4 and 5 of the orders sought in her Case Outline document dated 5 December 2014 is withdrawn.

Otherwise the application of the wife set out in that document, together with her oral application made on 12 December 2014 for an order in the alternative to the orders sought at paragraphs 1 and 2 of the Case Outline, being an order that the husband pay her $2,500 per week for a period of three years, are dismissed.

The Court declared that the agreement between the parties that was approved under section 87 of the Family Law Act 1975 (Cth) on 11 November 1997 is unenforceable.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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