FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ellerton & Jennings [2021] FedCFamC1A 39
Appeal from: Jennings & Ellerton [2021] FCCA 1213 Appeal number(s): SOA 17 of 2021 File number(s): ADC 4050 of 2020 Judgment of: STRICKLAND J Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – APPEAL – FINANCIAL – Where the parties executed a Binding Financial Agreement intended to cover all financial issues arising from their relationship including how property, financial resources and spousal maintenance would be dealt with in the event of separation – Where the issue raised on appeal is the respondent’s financial circumstances at the time of the Agreement coming into effect and whether he satisfied the onus that he had to demonstrate that he was unable to support himself at that time without an income tested pension, allowance or benefit – Where the evidence presented by the respondent at the relevant time was not objected to by the appellant on any ground including that it was inadmissible – Where issues raised on appeal were not put to the primary Judge and cannot therefore be raised on appeal – No error by the primary Judge – Appeal dismissed.
CROSS-APPEAL – FINANCIAL – Whether a clause in the Agreement addressing spousal maintenance was void pursuant to s 90E –Where there was no error made by the primary Judge in her interpretation of s 90E and in its application to the clause appealed – Where there is no merit in any of the grounds of cross-appeal – Cross-appeal dismissed.
COSTS – Both parties sought costs – Given the outcome of the appeal and the cross-appeal there should be no order for costs – Costs applications dismissed.
Legislation: Family Law Act 1975 (Cth) s 90E, s 90F
Family Law Amendment (Financial Agreement and Other Measures) Bill 2015
Family Law Amendment (Financial Agreement and Other Measures) Bill 2015 Explanatory Memorandum
Cases cited: Cooper v Fernihough & Anor [2019] FCA 727; 136 ACSR 585
Cumpton & Rainford [2020] FCCA 3441
Guild & Staasiuk [2019] FamCA 167
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 53 Date of hearing: 7 October 2021 Place: Adelaide Counsel for the Appellant/Cross-Respondent: Ms Boyle Solicitor for the Appellant/Cross-Respondent: Duncan Basheer Hannon Counsel for the Respondent/Cross-Appellant: Ms Ross Solicitor for the Respondent/Cross-Appellant: Camatta Lempens ORDERS
SOA 17 of 2021
ADC 4050 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ELLERTON
Appellant/Cross-Respondent
AND: MR JENNINGS
Respondent/Cross-Appellant
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The cross-appeal be dismissed.
3.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r…
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- AGLC
- Ellerton & Jennings [2021] FedCFamC1A 39
- Case
- [2021] FedCFamC1A 39
- Decision Date
CaseChat Overview and Summary
The case involves a dispute between the husband and wife regarding the enforceability of a Binding Financial Agreement (BFA) and the husband's eligibility for spousal maintenance under the Family Law Act 1975 (Cth). The husband filed an amended notice of cross-appeal challenging the primary judge's decision that clause 19 of the BFA was not void under section 90E of the Family Law Act 1975. The wife resisted the husband's cross-appeal. The parties executed the BFA on 21 April 2006, which addressed spousal maintenance, and the husband claimed it became operative on 11 or 12 May 2018, the date of separation. The legal issues before the court were whether the primary judge correctly applied section 90E and 90F(1A) of the Family Law Act 1975 and whether the husband was likely to be eligible for an income-tested pension, allowance, or benefit at the time of separation.
The court found that the primary judge did not err in applying sections 90E and 90F(1A) of the Family Law Act 1975. The husband's contention that there was insufficient evidence to support the primary judge's findings was rejected, as the court held that it was open to the primary judge to accept the husband's evidence regarding his financial circumstances at the relevant time. The court further found that the husband was likely to have been eligible for an income-tested pension, allowance, or benefit at the time of separation, which made section 90F(1A) applicable. Consequently, the husband was entitled to proceed with an application for spousal maintenance, notwithstanding the terms of the 2006 Agreement.
The court's reasoning was based on the husband's evidence that he was reliant on financial support from his family following separation, and the court accepted that he was struggling financially and likely to have been eligible for an income-tested pension, allowance, or benefit. The court did not find the wife's allegations regarding the husband's living arrangements and assets to be substantiated by independent evidence. Therefore, the court upheld the primary judge's decision and made orders accordingly.
The final orders were that the husband was entitled to proceed with an application for spousal maintenance, notwithstanding the terms of the 2006 Agreement. The wife's Amended Notice of Appeal was dismissed, and the husband's Amended Notice of Cross-Appeal was dismissed. The parties were to bear their own costs of the appeal and cross-appeal.
The court found that the primary judge did not err in applying sections 90E and 90F(1A) of the Family Law Act 1975. The husband's contention that there was insufficient evidence to support the primary judge's findings was rejected, as the court held that it was open to the primary judge to accept the husband's evidence regarding his financial circumstances at the relevant time. The court further found that the husband was likely to have been eligible for an income-tested pension, allowance, or benefit at the time of separation, which made section 90F(1A) applicable. Consequently, the husband was entitled to proceed with an application for spousal maintenance, notwithstanding the terms of the 2006 Agreement.
The court's reasoning was based on the husband's evidence that he was reliant on financial support from his family following separation, and the court accepted that he was struggling financially and likely to have been eligible for an income-tested pension, allowance, or benefit. The court did not find the wife's allegations regarding the husband's living arrangements and assets to be substantiated by independent evidence. Therefore, the court upheld the primary judge's decision and made orders accordingly.
The final orders were that the husband was entitled to proceed with an application for spousal maintenance, notwithstanding the terms of the 2006 Agreement. The wife's Amended Notice of Appeal was dismissed, and the husband's Amended Notice of Cross-Appeal was dismissed. The parties were to bear their own costs of the appeal and cross-appeal.
Orders
Orders of the court
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Background
Background to the litigation
The husband resists the wife’s Amended Notice of Appeal. Further, by his Amended Notice of Cross-Appeal filed on 5 July 2021, the husband alleges the primary Judge erred in also determining that clause 19 of the Binding Financial Agreement (BFA) was not void pursuant to s 90E. The husband’s cross-appeal is resisted by the wife.BACKGROUND On 21 April 2006, the parties executed the BFA. Her Honour found at [5] and [6] that the parties intended to cover all financial issues arising from their relationship, including how their property and financial resources and spousal maintenance would be dealt with in the event of separation. Clauses 19, 20 and 21 addressed the topic of spousal maintenance. Those clauses and recital 35 of the BFA make clear that the parties were intending to waive all rights to spousal maintenance, except as provided for in the Agreement. The parties agreed that the BFA became operative on either 11 or 12 May 2018, being the date of separation. Section 90E provides as follows:A provision of a financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies:(a)the party, or the child or children, for whose maintenance provision is made; and(b)the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be. Section 90F(1) provides as follows:No provision of a financial agreement excludes or limits the power of a court to make an order in relation to the maintenance of a party to a marriage if subsection (1A) applies Section 90F(1A) provides as follows:This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit.THE APPEAL The wife’s Amended Notice of Appeal contains the following grounds of appeal:1.The primary judge erred in determining that section 90F(1A) of the Family Law Act 1975 is applicable to the Financial Agreement the subject of these proceedings (“the agreement”) in circumstances where:(a)There was no admissible evidence, or alternatively an insufficient evidentiary basis, to support a finding that, when the agreement came into effect, the husband was unable to support himself without an income tested pension, allowance or benefit; (b)There was admissible evidence to support a finding that, when the agreement came into effect, the husband was able to support himself without an income tested pension, allowance or benefit; and(c) The husband bore the evidentiary onus. The first thing to note is that before her Honour, the parties relied on their affidavits and their written submissions. There was no oral evidence given and no cross-examination. Thus, it was open to her Honour to accept the evidence of one party, and as was said by the High Court in Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550, at [43]:…a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” (Fox v Percy (2003) 214 CLR 118 at [28]), or they are “glaringly improbable” or “contrary to compelling inferences” (Fox v Percy T [29]). …
Evidence
Evidence Before The Court
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Decision
Reasons for decision
As a result of her Honour accepting the evidence of the husband as to his financial circumstances at the relevant time, her Honour made the following findings:16The question then to be determined is whether, at the time when the terms of the Agreement regarding spousal maintenance came into effect – that is, at the time of separation in May 2018 – was the applicant, [husband], able to support himself without an income-tested pension, allowance or benefit?17According to his Affidavit and his Financial Statement, the [husband] says that his current weekly income is $576, including a small pension payment from his time working in Country A (now $178 per week), and his Australian “Centerlink [sic] Retirement pension” in the sum of $398 per week. His weekly expenses were listed at $720.18The [husband] tells the Court that his income at the time the parties separated was limited to his Country A pension. In those circumstances it is easy to accept that [the husband] would also have been eligible for a Centrelink income-tested pension or benefit. The [husband] goes on to say that he applied for an Australian aged pension shortly after separation but there were delays in assessing his eligibility. He was eventually granted the pension approximately 9 months later, in late 2018 or early 2019.19Whether the [husband] was similarly entitled in May 2018, at the time the parties separated may depend on his other financial resources, of course. In his original Affidavit filed 27 August 2020 the [husband] says that [the wife] “divided up” a joint account, taking $2,500 and leaving him with the balance of $2,900 or so. He then relied upon financial support from his brother for a period, before eventually receiving the Australian aged pension.20The wife argues that the [husband] owned or retained the other assets that he had brought into the relationship, including his half-share in Company B and premises at Location C. He also owned a half share of the business contents which were insured at $100,000 but were likely to be actually valued much less. The [husband] also held approximately $73,000 in savings at the time the Agreement was signed. This financial background is useful, but it does not give me any insight as to what the [husband] owned at the time the Agreement came into effect with respect to spousal maintenance.21The [husband] says that he relied upon financial support from his brother and also from his son Mr E, including accommodation. This continued until Mr E’s death in October 2020. The applicant continues to live in Mr E’s home with his daughter-in-law and grandchildren and he is not able to meet his own expenses other than with the support of his daughter-in-law and support provided to him by family and friends.22The [wife] alleges that the [husband] is living with his girlfriend Ms D. The [husband] concedes that he is in a relationship with Ms D, but says they are not living together, and his Centrelink status is still recorded as single. There is no independent evidence to justify the [wife’s] claim.23The Court has not received any documentation from Centrelink that the [husband] was in receipt, or was likely to have been eligible for a Centrelink pension immediately following separation in 2018, but the evidence indicates that is likely to have been the case. I am certainly satisfied the [husband] was struggling financially after separation and was reliant upon financial support from his family at this time. The [husband] may have held his half-interest in business and the Location C property, but the value of that interest is unknown and may not have affected his eligibility for a government pension or allowance, in any event.24I note the [husband] transferred his interest in Company B to his son Mr E in the months following separation, allegedly in lieu of various debts he owed to his son. Whether those debts related to financial support provided by Mr E, or related to the business, is unclear, but I do not consider this affects my decision in this matter today. CONCLUSION25On the evidence before me, I am satisfied that at the time the Agreement in relation to spousal maintenance came into effect, the [husband] was likely to have been eligible for an income-tested pension, allowance or benefit from the Australian Government. Accordingly, pursuant to s.90F(1A), he is entitled to proceed with an application for spousal maintenance, notwithstanding the terms of the 2006 Agreement and I make orders accordingly.(Footnotes omitted)
Ratio Decidendi
Legal Principle Established
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