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 | of | 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…
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- AGLC
- Blakeley & Jaine (No 2) [2020] FamCA 141
- Case
- [2020] FamCA 141
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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