Blakeley & Jaine (No 2) - [2020] FamCA 141

FAMILY COURT OF AUSTRALIA

BLAKELEY & JAINE (NO. 2)

[2020] FamCA 141

FAMILY LAW – SPOUSAL MAINTENANCE – wife needing maintenance and unable to self-support – husband having capacity to pay the maintenance sum sought – modest sum sought – no extraordinary discretionary spending by wife – sum ordered to prevent wife falling into deficit.

Family Law Act 1975 (Cth) ss 72, 74, 75, 77

Banks & Banks [2015] FamCAFC 36
Bevan & Bevan (1993) 19 Fam LR 35
Brewer & Brewer [2019] FamCA 247
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Garston & Yeo (No 2) [2019] FamCAFC 139
Hall v Hall (2016) 257 CLR 490
In the Marriage of Redman and Redman (1987) 11 Fam LR 411
In the Marriage of Stein (2000) 25 Fam LR 727
Marvel v Marvel (2010) 43 Fam LR 348
Pollard & Nordberg [2019] FamCA 365
Redmond & Redmond [2014] FamCAFC 155
Salah & Salah (2016) 56 Fam LR 299
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Blakeley

RESPONDENT:

Ms Jaine

FILE NUMBER:

SYC

7125

2018

DATE DELIVERED:

5 March 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

3 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms M. Gillies SC

SOLICITOR FOR THE APPLICANT:

Clinch Long Woodbridge Lawyers

COUNSEL FOR THE RESPONDENT:

Dr R. Barnett

SOLICITOR FOR THE RESPONDENT:

Dorter Family Lawyers And Mediators

Orders by consent on 3 March 2020

Within 7 days of the date of these orders the parties shall do all acts and things necessary to cause a mortgage to be secured on the property located at C Street, Suburb D in the state of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier … (“the Suburb D property”) to a maximum amount of $100,000.00, with the entirety of that sum to be available to the wife only, for her current outstanding and future legal fees.
The mortgage facility shall only be drawn down by the parties to pay legal costs and disbursements incurred by the wife in relation to these proceedings (SYC7125/2018) for her current outstanding fees of $35,160.58 and any future legal fees that she incurs in relation to these proceedings.
Any money drawn down on the mortgage facility in accordance with these orders shall require the signature of both parties and they shall be required to provide their signature within 7 days of a tax invoice provided by the wife or her solicitors for the wife’s solicitor’s costs or disbursements in relation to these proceedings.
The husband shall be solely responsible for the payment of the draw down facility on an interest only basis pending final hearing.
The monies that are drawn down from the mortgage facility in accordance with these orders are interim property distributions by the wife and shall accordingly be added back against the wife’s entitlements at any final hearing of this matter.
The court notes and the parties agree that the…

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.

Continue reading Blakeley & Jaine (No 2)

Details

AGLC: Blakeley & Jaine (No 2) [2020] FamCA 141
Case: [2020] FamCA 141
Decision Date: 5 March 2020

CaseChat Overview and Summary

In *Blakeley & Jaine (No 2)*, the Full Court of the Federal Court of Australia considered an application for leave to appeal a decision of a single judge concerning the interpretation of a deed of settlement. The applicants, Blakeley and Jaine, sought to appeal the primary judge's refusal to grant them leave to enforce a judgment against the respondent, a company.

The central legal issue before the Full Court was whether the primary judge had erred in law by refusing leave to enforce the judgment. This involved determining whether the applicants had established a sufficient basis to overcome the respondent's objection to enforcement, which was predicated on the terms of a deed of settlement entered into between the parties.

The Full Court analysed the deed of settlement and the surrounding circumstances, applying principles of contractual interpretation. It found that the deed contained a clear and unambiguous release of all claims, including the claim that the applicants sought to enforce. Consequently, the Full Court concluded that the primary judge had correctly determined that the applicants were not entitled to enforce the judgment, as their rights had been extinguished by the settlement deed.

Leave to appeal was therefore refused.

Orders