FAMILY COURT OF AUSTRALIA
| FEWSTER & DRAKE | [2016] FamCAFC 214 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – Whether the orders appealed from are interlocutory or final – Where the order setting aside the binding financial agreement is a final order and leave to appeal is not necessary – Where the order for spousal maintenance is interlocutory and leave to appeal from it is required – Application of Medlow & Medlow (2016) FLC 93-692 – Leave to appeal granted. FAMILY LAW – APPEAL – BINDING FINANCIAL AGREEMENT – Appeal against the setting aside of a binding financial agreement – Where the parties entered into a financial agreement under s 90C of the Family Law Act 1975 (Cth) – Where the agreement did not exclude the wife from making an application for spousal maintenance – Where the primary judge set aside the binding financial agreement pursuant to s 90K(1)(d) of the Family Law Act 1975 (Cth) – Discussion of the requirements of s 90K(1)(d) – Discussion of Pascot & Pascot [2011] FamCA 945 – Where the primary judge erred in his construction and application of s 90K(1)(d) –– Appeal allowed – Whether the Court should re-exercise the discretion or remit the matter – Where a re-exercise of the discretion is appropriate – Where the wife’s application under s 90K(1)(d) is dismissed. FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Appeal against an order for interim spousal maintenance – Where the primary judge failed to have proper regard to the wife’s capital resources – Where the primary judge took into account an irrelevant consideration by determining the application for interim spousal maintenance on the basis that property proceedings between the parties were imminent – Where the primary judge failed to consider the wife’s concession about her unexercised earning capacity – Appeal allowed – Application for spousal maintenance remitted to the Family Court of Australia. FAMILY LAW – APPEAL – COSTS – Where the primary judge was in error – Costs certificates granted. |
| Family Law Act 1975 (Cth) ss 4, 70(1)(h), 74(1), 74(8), 75(2), 90C, 90E, 90K(1)(d) |
| Bennett and Bennett (1991) FLC 92-191 |
| APPELLANT: | Mr Fewster |
| RESPONDENT: | Ms Drake |
| FILE NUMBER: | PAC | 3945 | of | 2014 |
| APPEAL NUMBER: | EA | 139 | of | 2015 |
| DATE DELIVERED: | 4 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: |
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- AGLC
- Fewster & Drake [2016] FamCAFC 214
- Case
- [2016] FamCAFC 214
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether the orders appealed from were interlocutory or final, and if the Court should allow the appeal. Specifically, the Court had to determine whether the order setting aside the binding financial agreement was a final order and if leave to appeal was necessary. Additionally, the Court considered whether the spousal maintenance order was interlocutory and if leave to appeal from it was required. The Court also had to determine if the primary judge erred in setting aside the binding financial agreement and whether the Court should re-exercise the discretion or remit the matter.
The Court found that the order setting aside the binding financial agreement was a final order, and therefore leave to appeal was not necessary. However, the spousal maintenance order was interlocutory, and leave to appeal from it was required. The Court held that the primary judge had erred in setting aside the binding financial agreement and that the wife's application under section 90K(1)(d) of the Family Law Act 1975 (Cth) should be dismissed. The Court also found that the primary judge had failed to have proper regard to the wife's capital resources and had taken into account an irrelevant consideration in determining the spousal maintenance application. As a result, the appeal against the spousal maintenance order was allowed, and the matter was remitted to the Family Court of Australia for rehearing by a judge other than Foster J. Finally, the Court granted costs certificates to both parties.
The Court's orders included dismissing the application in appeal, allowing the appeal, setting aside the order made by Foster J, dismissing the wife's application to set aside the binding financial agreement, granting leave to appeal against the spousal maintenance order, remitting the spousal maintenance application to the Family Court of Australia, and granting costs certificates to both parties. The form of the order was subject to the entry of the order in the Court's records.
Orders
Orders of the court
1.
The Application in an Appeal filed on 8 August 2016 is dismissed.
2.
The appeal be allowed.
3.
Order 1 made by Foster J on 28 July 2015 be set aside.
4.
The application of the wife to set aside the binding financial agreement entered into between her and the husband on 22 December 2006 be dismissed.
5.
Leave is granted to appeal against Order 2 made by Foster J on 28 July 2015 and that Order is set aside.
6.
The wife’s application for spousal maintenance is remitted to the Family Court of Australia for rehearing by a judge other than Foster J.
7.
That the Court grants to the appellant husband a costs certificate pursuant to 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 husband in respect of the costs incurred by him in relation to the appeal.
8.
The Court grants to the respondent wife 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 wife 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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