ELEI & DODT

Case [2018] FamCAFC 92

FAMILY COURT OF AUSTRALIA

ELEI & DODT [2018] FamCAFC 92

FAMILY LAW – APPEAL – DE FACTO SPOUSAL MAINTENANCE – Appeal against interim orders – Findings of fact – Whether the respondent is unable to support herself – Whether the respondent was obliged to prove unsuccessful applications for employment – Whether the appellant had capacity to pay spousal support – Where the appellant re-partnered and contributes to support of partner and partner’s children – Appeal allowed in part.

FAMILY LAW – APPEAL – DE FACTO PROPERTY – Partial property order – Where funds are available – Modest order – No error – Leave to appeal refused.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Leave to appeal granted in part.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Error established without it being necessary to consider the further evidence – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where each party had a measure of success – Application for costs by the appellant dismissed – Application for costs by the respondent dismissed – Costs certificates issued for the appeal.
Family Law Act 1975 (Cth) ss 72, 75(2), 90SE, 90SE(1), 90SE(4), 90SF, 90SF(1), 90SF(3), 90SM, 94AAA(3)
Axtell and Axtell (1982) FLC 91-208; [1982] FamCA 10
Maroney & Maroney [2009] FamCAFC 45
Medlow & Medlow (2016) FLC 93-692; [2016] FamCA 411
Saxena and Saxena (2006) FLC 93-268; [2006] FamCA 588
Soblusky and Soblusky (1976) FLC 90-124; [1976[ FamCA 90
Stein v Stein (2000) FLC 93-004; [2000] FamCA 102
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2011] FamCAFC 126
Wilson and Wilson (1989) FLC 92-033; [1989] FamCA 34
APPELLANT: Mr Elei
RESPONDENT: Ms Dodt
FILE NUMBER: SYC 6260 of 2016
APPEAL NUMBER: EA 16 of 2018
DATE DELIVERED: 17 May 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ryan J
HEARING DATE: 17 April 2018
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 22 December 2017
LOWER COURT MNC: [2017] FCCA 3348

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Livingstone
SOLICITOR FOR THE APPELLANT: David H. Cohen & Co
COUNSEL FOR THE RESPONDENT: Mr Avery-Williams
SOLICITOR FOR THE RESPONDENT: Stacks Collins Thompson

Orders

  1. That the appellant be granted leave to appeal Orders 2 and 3 dated 22 December 2017.

  2. That the appeal against Orders 2 and 3 dated 22 December 2017 be allowed.

  3. That Orders 2 and 3 dated 22 December 2017 be set aside.

  4. That the application for leave to appeal against Orders 4 and 5 dated 22 December 2017 be dismissed.

  5. The application filed by the appellant on 1 February 2018 be dismissed.

  6. The application by the appellant for costs be dismissed.

  7. The application by the respondent for costs be dismissed.

  8. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a…

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AGLC
ELEI & DODT [2018] FamCAFC 92
Case
[2018] FamCAFC 92
Decision Date

CaseChat Overview and Summary

This appeal involved a dispute between the parties regarding spousal maintenance and property division following the breakdown of their de facto relationship. The matter was heard in the Family Court of Australia. The appeal focused on several contested orders, including those related to spousal maintenance, property settlement, and the allowance of leave to appeal certain decisions.

The legal issues before the court were whether the respondent had discharged the onus of proving she was unable to support herself, if she was required to demonstrate unsuccessful applications for employment, and whether the appellant had the capacity to pay spousal maintenance. Additionally, the court needed to determine if the property settlement was appropriate given the circumstances and whether leave to appeal should be granted for certain orders.

The court found that the appellant had the capacity to pay spousal maintenance and that the orders for spousal maintenance were excessive. The court also determined that the respondent had not discharged the onus of proving her inability to support herself, and there was no requirement for her to prove unsuccessful applications for employment. Regarding the property settlement, the court found no error in the modest property order made and denied the appeal against those orders. The court granted leave to appeal in part but dismissed the application to adduce further evidence as the error was established without its necessity. Both parties' applications for costs were dismissed, and costs certificates were issued for the appeal.

The court's orders included allowing the appeal in part, setting aside certain orders, denying leave to appeal for other orders, and dismissing both parties' applications for costs. Costs certificates were granted to both parties under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

1.

That the appellant be granted leave to appeal Orders 2 and 3 dated 22 December 2017.

2.

That the appeal against Orders 2 and 3 dated 22 December 2017 be allowed.

3.

That Orders 2 and 3 dated 22 December 2017 be set aside.

4.

That the application for leave to appeal against Orders 4 and 5 dated 22 December 2017 be dismissed.

5.

The application filed by the appellant on 1 February 2018 be dismissed.

6.

The application by the appellant for costs be dismissed.

7.

The application by the respondent for costs be dismissed.

8.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

9.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

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

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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