Ellerton & Jennings

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.