GARRA-MARSH & GARRA-MARSH (NO.3) - [2012] FMCAfam 1144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARRA-MARSH & GARRA-MARSH (NO.3)

[2012] FMCAfam 1144

FAMILY LAW – Property – binding financial agreement – application to set aside binding financial agreement.

FAMILY LAW – Maintenance – spousal maintenance – binding financial agreement relating to spousal maintenance – application to set aside binding financial agreement.

FAMILY LAW – Maintenance – spousal maintenance – orders – interim orders – application for interim spousal maintenance – application for lump sum spousal maintenance – where binding financial agreement in force – no jurisdiction to make an interim order for spousal maintenance.

CHILD SUPPORT – Binding child support agreement – application to set aside binding child support agreement.

CHILD SUPPORT – Application for interim child support – application for lump sum child support – whether child support agreement in force – whether child support agreement precludes application for orders by way of child support – whether child support agreement is a binding child support agreement – where binding child support agreement in force – no jurisdiction to make an interim order for payments of child support.

PRACTICE & PROCEDURE – Competency – objection to competency.

PRACTICE & PROCEDURE – Directions – pre-trial directions.

Child Support (Assessment) Act 1989 (Cth), ss.24, 25, 80C, 80CA, 80D, 81, 82, 83, 84, 100,136
Evidence Act 1995 (Cth) s.56
Family Law Act 1975 (Cth), ss.69ZT, 71A, 90C, 90D, 90E, 90G, 90K, 117.
Federal Magistrates Act 1999 (Cth) s.39
Federal Magistrates Court Rules 2001 rr.8.02, 15A.05, 15.25

Black v Black [2008] FamCAFC 7; (2008) 38 Fam LR 503; FLC 93-357
Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) 27 Fam LR 517; FLC 93-072
Garra-Marsh & Garra-Marsh (No.2) [2012] FMCAfam 1135

Applicant:

MS GARRA-MARSH

Respondent:

MR GARRA-MARSH

File Number:

SYC 1541 of 2009

Judgment of:

Scarlett FM

Hearing date:

13 August 2012

Date of Last Submission:

13 August 2012

Delivered at:

Sydney

Delivered on:

24 October 2012

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

No solicitor on the record

Counsel for the Respondent:

Ms Ede

Solicitors for the Respondent:

Abrams Turner Whelan Family Lawyers

ORDERS

The Application in a Case filed on 12 July 2012 is dismissed.
The Respondent is to file and serve an affidavit particularising the costs and disbursements sought in connection with the Application for costs filed on 2 August 2012.
Within six (6) weeks from the date of these Orders the Applicant

Ms Garra-Marsh is to file and serve an Amended Application for Final Orders fully particularising the legislative bases upon which she relies in seeking to set aside all or any of the following:
(a)Binding Financial Agreement entered into between the parties on 17 April 2009;
(b)Binding Child Support Agreement entered into between the parties on 17 April 2009; and
(c)Binding Financial Agreement entered into between the parties on 7 August 2009.
Within six (6) weeks of the date of these Orders the Applicant

Ms Garra-Marsh is to file and serve an affidavit setting out the evidence upon she seeks to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCAfam 1144
Decision Date: 24 October 2012

CaseChat Overview and Summary

The case before the Family Court was brought by Ms Garra-Marsh, seeking to set aside certain binding agreements entered into with Mr Garra-Marsh. These included a Binding Financial Agreement from April 2009, a revised Binding Financial Agreement from August 2009, and a Binding Child Support Agreement from April 2009. Ms Garra-Marsh also sought interim spousal and child support payments, and lump sum orders, despite the agreements being in force. The court had to decide whether it had the jurisdiction to set aside the agreements and make interim maintenance orders, given the existence of these binding agreements.

The legal issues revolved around the enforceability of the binding agreements and whether the court had jurisdiction to make interim spousal and child support orders in light of these agreements. The court had to determine if the Binding Financial Agreements and the Binding Child Support Agreement were valid and binding, and if so, whether this precluded the court from making interim orders for spousal and child support. The court also had to consider whether Ms Garra-Marsh's application to set aside the agreements was properly particularised.

The court found that the Binding Financial Agreements and the Binding Child Support Agreement were valid and binding, and thus, the court did not have the jurisdiction to make interim spousal or child support orders. The court also found that Ms Garra-Marsh's application to set aside the agreements was not sufficiently particularised and dismissed the application. The court ordered Ms Garra-Marsh to file an amended application and affidavit detailing the evidence and legislative bases for setting aside the agreements, and set a timeline for the respondent to file a response. The court further directed that all affidavits comply with specific formatting requirements and adjourned the matter for further mention.

Orders

Orders of the court

The Application in a Case filed on 12 July 2012 is dismissed.

The Respondent is to file and serve an affidavit particularising the costs and disbursements sought in connection with the Application for costs filed on 2 August 2012.

Within six (6) weeks from the date of these Orders the Applicant

Ms Garra-Marsh is to file and serve an Amended Application for Final Orders fully particularising the legislative bases upon which she relies in seeking to set aside all or any of the following:

(a) Binding Financial Agreement entered into between the parties on 17 April 2009;

(b) Binding Child Support Agreement entered into between the parties on 17 April 2009; and

Within six (6) weeks of the date of these Orders the Applicant

Ms Garra-Marsh is to file and serve an affidavit setting out the evidence upon she seeks to rely on the final hearing of the Application.

Within six (6) weeks after the date of service upon him of the Amended Application and Affidavit referred to in Orders (3) and (4) above the Respondent Mr Garra-Marsh is to file and serve an Amended Response and an affidavit setting the facts upon which he seeks to rely.

All affidavits filed in this proceeding must comply with the requirements of Rule 15.25 in that they must be divided into paragraphs numbered consecutively with each paragraph being as far as possible confined to a distinct part of the subject of the affidavit.

The Application will be adjourned to a date to be fixed by the Court for further mention.

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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