Gatsby and Gatsby
[2011] FamCA 1042
•13 December 2011
FAMILY COURT OF AUSTRALIA
| GATSBY & GATSBY | [2011] FamCA 1042 |
| FAMILY LAW - JURISDICTION – Spousal Maintenance – Section 74 and 77A of the Family Law Act 1975 (Cth) – Final Consent Orders in relation to property settlement – No specific order that certain lump sum amounts paid by the husband were for spousal maintenance – Only reference to spousal maintenance in notation - Effect of notations. |
| Family Law Act 1975 (Cth) Family Provision Act 1982 (NSW) |
| DW & GT [2005] FamCA 161, (2005) FLC 93-217, (2005) 33 Fam LR 177 In the marriage of Caska (2002) FLC 93-092 PAJ & GMJ [2003] FamCA 751 Woodcock & Woodcock (1997) FLC 92-739, 21 Fam LR 393 |
| APPLICANT: | Ms Gatsby |
| RESPONDENT: | Mr Gatsby |
| FILE NUMBER: | SYC | 1428 | of | 2011 |
| DATE DELIVERED: | 13 December 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 12 December 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shaw |
| SOLICITOR FOR THE APPLICANT: | Ms Dines Martin Bullock Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Black |
Orders
That the matter be listed before another Judge in a Duty List on 13 February 2012.
That the wife within ten (10) days file and serve an amended application or document setting out, with precision, the orders that she now seeks the Court make.
That I disqualify myself from hearing this matter further.
It is noted there is no appearance by or on behalf of the wife here today and whilst no application for costs is before me, I make it clear, that any such application will have to be made in accordance with the Rules of Court.
IT IS NOTED that publication of this judgment under the pseudonym Gatsby & Gatsby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 1428 of 2010
| Ms Gatsby |
Applicant
And
| Mr Gatsby |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the wife has brought an application for spousal maintenance, contained in her Initiating Application. The husband opposes any such application and any orders that the wife seeks in relation to spousal maintenance, be it interim, urgent or final spousal maintenance. He contends that the parties have settled and resolved all issues between them for all time by virtue of the Consent Orders made in the Federal Magistrates Court on 13 January 2011.
background
A brief history of this matter is instructive:
·The wife was born in 1956.
·The husband was born in 1956.
·They married in March 2003.
·They separated on 1 January or thereabouts in 2010.
·Orders were made, as I have said, by consent in the Federal Magistrates Court on 13 January 2011 and I will return to the particulars of those Orders later in these reasons for judgment.
·A decree nisi in respect of the parties’ marriage was pronounced in July 2011 and became absolute in August 2011.
the parties’ documents
The parties’ documents can be summarised as follows:
·The wife filed her application on 31 October 2011.
·She supported that with an affidavit sworn on the 31st and filed on 31 October 2011.
·She filed a further affidavit sworn on 2 December and filed on 2 December 2011.
·There was also an amended statement of financial circumstances verified by affidavit sworn 2 December and filed on 2 December 2011.
The husband for his part relied upon the following documents:
·His response filed on 10 November 2011.
·His affidavit sworn on 6 December and filed on 7 December 2011.
·His affidavit sworn on 9 November and filed on 10 November 2011.
·An earlier affidavit sworn on 21 October and filed on 22 October 2010.
·A statement of financial affairs of the husband verified by affidavit sworn 9 November and filed on 10 November 2011.
Each party filed and relied upon written submissions and further submissions were made by counsel on behalf of each of the parties yesterday.
the orders of 13 january 2011
The Orders which give rise to this present application are in these terms:-
BY CONSENT IT IS ORDERED:
1) The husband shall pay to the Wife $37,000.00 payable as follows:
a) $10,000.00 within 30 days of the date of filing of this order,
b) $10,000.00 within 90 days of the date of filing of this order,
c) $17,000.00 by way of 17 fortnightly instalments of $1,000.00 per fortnight commencing within 14 days of the date of filing of this order.
2)The payment referred to in Paragraph 1(a) hereof is to be made to the Wife’s solicitors [H Law Firm].
3)That the Husband continue to make the payment in Paragraph 1 of the Orders made on 8 November 2010 until receipt by the Wife of the first fortnightly instalment of $1,000.00 pursuant to Paragraph 1(iii) of this Order whereupon paragraph 1 of the Orders, 8 November 2010 is to be discharged.
4)The Husband pay to the Wife’s solicitors an amount equal to 60% of the wife’s costs and disbursements from 22 March 2010 until the conclusion of this matter as agreed or taxed on a party party basis on the Federal Courts Scale of Costs. The said payment to be made within 30 days of the date of agreement or certificate of taxation.
5)That the Husband be responsible for and make all payments as and when they fall due with respect to interest and if required by the creditor principle and interest with respect to the personal loan with St George Bank in the joint names of the parties and to indemnify the Wife in respect to same and within 90 days of the filing of this Order refinance the said loan in the Husbands name solely and provide evidence of same to the Wife’s solicitors.
6)Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
a)each party be solely entitled to at the exclusion of the other to all superannuation benefits earned by that party and other property including Choses-in-Action in the possession of and/or owned by that party as at the date of these Orders.
b)money standing to the credit of the party in any bank account being deemed to be in the possession of the person whose name appears on the bank,
c)insurance policies shall remain the sole property of the owner name thereon,
d)each party be solely liable for and indemnify the other against any liability encumbering any item of the property to which that party is entitled to pursuant to these Orders.
7)That the Conciliation Conference scheduled for 28 January 2011 and the Directions Hearing for 28 January 2011 be vacated and this matter be removed from the Active Pending Cases List in accordance with Paragraph 13 of the Orders made on 8 November 2010.
THE COURT NOTES:
A:It is the intention of the parties that these Orders be made in full and final settlement in relation to all financial matters, including but not limited to, weekly spousal maintenance payments and lump sum payments and any potential claim pursuant to the Family Provision Act 1982.
Clearly, as was pointed out to me by Mr Shaw, that notation can have no effect so far as any claim under the Family Provision Act1982 (NSW) is concerned. Further, it is the only mention in the document as to maintenance of any kind. It is clear from correspondence and affidavit material that the parties may well have thought that certain parts of the amounts ordered to be paid were in satisfaction of spousal maintenance for the wife. However, there does not appear on the face of the Orders themselves, as against the mention in the notation, of any issue involving spousal maintenance. Thus, nowhere in the body of the Orders is there specified any amount to be paid as spousal maintenance of any kind.
the wife’s case
The wife’s case as put to me by Mr Shaw of counsel is that the wife should receive maintenance from the husband and contends that there is no bar or restriction upon the Court entertaining such an application.
the husband’s case
The husband contends that the wife is not entitled to achieve any order for spousal maintenance because the Orders of the 13 January 2011 are final in respect of all matters and thus the wife can make no further claim for maintenance for herself.
It is the husband’s evidence that it was his understanding that part of the monies paid by him were paid for maintenance. The Orders do not assist him in this regard.
DISCUSSION
The parties, and particularly the husband, seem to have operated on the basis that the Orders of 13 January 2011 made provision for spousal maintenance. This is clearly not the case. There is no mention to be found in the Orders themselves of maintenance for either party.
In Caska[1] the Full Court of the Family Court of Australia looked at a number of matters in a situation not dissimilar to this present matter. It is, however, the differences that to my mind are important.
[1] In the marriage of Caska (2002) FLC 93-092
In that matter there was clearly an order providing for payment of spousal maintenance which stood separately and apart from an order for property settlement. The Orders in that case provided for the husband to pay the wife $60,000.00 by way of spousal maintenance, within 28 days. The Orders further provided for the husband to pay $140,000.00 in yearly instalments by way of property settlement. It was argued in Caska (supra) that as the $60,000.00 had been paid (and there was no dispute as to that) there was no further issue for determination in respect of spousal maintenance.
In this case it is clear that there is no mention, (as I have said to the point of boredom), of any of the money being, as it were, described and apportioned as spousal maintenance for the wife. The Orders in the present case are thus clearly different.
Section 77A of the Family Law Act 1975 (Cth) deals with a situation where an order for payment of a lump sum does not:-
i) Specify it is an order of a kind referred to within the section; and
ii)Does not specify the portion of the payment attributable to the provision of maintenance for the party.
The effect of non-compliance is that an order shall be taken to not make provision for spousal maintenance. I am aware of the comments of their Honours in Caska (supra) that section 77A is a provision which need not be construed strictly.
In this present case it is clear that in the Orders no attempt is made to either specify an order, as opposed to the notation, is of the kind referred to within the above section or to specify the portion of the payment attributable to the provision of maintenance for the wife.
The notation forming part of the document is in the terms that I have already set out. Young J, in dealing with what indeed was the intention and effect of a notation in a case of PAJ & GMJ[2] in 2003 said this:
Notations are not orders made by the court but a statement of the then wishes and intentions of the parties and an aid to the court, if required, to properly interpret the orders pronounced.
[2] [2003] FamCA 751 at paragraph 43
With respect, I agree with what his Honour said. Having regard to His Honour’s comments, I do not believe that the husband can successfully argue that I can use the notation to interpret the Orders so far as to find they contain some provision for spousal maintenance, when the Orders are entirely silent in that regard. The reference to the parties’ intentions contained within the notation is plain. However, can that expression of intention operate so as to prevent the wife proceeding with her current application?
In the matter of DW & GT[3] their Honours of the Full Court of the Family Court of Australia dealt with the issue of what is required before the jurisdiction of the Court can be ousted. At paragraph 34 of that judgment, their Honours made reference to an earlier case of Woodcock & Woodcock[4] which they cited with approval. Their Honours found that the Full Court in that case held the doctrine of estoppel does not operate to prevent the Court from exercising its jurisdiction to make orders under sections 74, 79 and 85A. The appropriate section in this present case is of course section 74.
[3] [2005] FamCA 161, (2005) FLC 93-217, (2005) 33 Fam LR 177
[4] (1997) FLC 92-739, 21 Fam LR 393
Their Honours then quoted from the earlier case of Woodcock (supra):
In our view the cases referred to above clearly indicate that the Court’s jurisdiction to grant relief under s 74 or 79 can only be ousted by court order or by an agreement approved pursuant to the provisions of s 87. It may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ “the worst of both worlds” as it would be impossible to predict from case to case, exactly what weight ought to be given to the agreement…
Their Honours then made further reference to earlier cases. Their Honours concluded “however it is the dominant and unwavering thread of all of the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the Court”.
Their Honours also made reference to section 87 of the Family Law Act which of course is now repealed and replaced by the new Part VIIIA of the Act dealing with Binding Financial Agreements.
It will be remembered, in the course of an exchange with Mr Shaw yesterday, I asked him how he asserted the jurisdiction of the Court could be ousted. He answered that that could only be done by the parties entering into a Binding Financial Agreement. For what it is worth, I agree with that comment by Mr Shaw.
CONCLUSION
The situation here is that there is no order that in any way seeks to achieve finality so far as spousal maintenance is concerned. There is no attempt in the Orders (as against the notation) to deal with the issue of spousal maintenance in any fashion. I am satisfied that the notation to the document cannot be promoted to the status of an order.
Thus, even accepting that section 77A is a provision which need not be construed strictly, I am satisfied that in this present case the effect of section 77A is that the Orders of the 13 January 2011 shall not be taken to make provision for the maintenance of the wife.
Further, particularly having regard to the passage quoted by their Honours and referred to in paragraph 34 of DW & GT (supra), there is nothing in this present case that operates to oust the jurisdiction of the Court, so as to prevent further orders for spousal maintenance being sought, and if considered appropriate, made.
There is no question in this particular case of the leave of the Court being required pursuant to section 44(3) of the Act so as to enable the matter to be commenced. This was another matter that occupied their Honours in Caska (supra) and has, so far as I am concerned, no bearing on the present matter. The parties’ decree nisi became absolute in August 2011. Accordingly, the wife is in time to commence proceedings under section 74 of the Act, having filed her Initiating Application on 31 October 2011.
I have come to the conclusion that the wife is not estopped or barred from proceeding with her application for spousal maintenance. However, I am aware that their Honours in paragraph 35 of DW & GT (supra) made a number of observations. Their Honours said this:-
35. Nevertheless, the Full Court held that the facts relied upon to establish the existence of circumstances where the doctrine of estoppel might otherwise operate (eg an agreement reached or a representation made and acted upon) may well be relevant to determine:
“(a) whether it is proper to make an order for the provision of maintenance pursuant to s 74 of the Family Law Act.
(b) whether it is appropriate to make an order for alteration of property interests pursuant to s 79(1) of the Family Law Act.
(c) whether it is just and equitable to make an order for alteration of property interests within the meaning of s 79(2) of the Family Law Act.
(d) whether it is necessary to make an order to do justice within the meaning of s 80(1)(k) of the Family law Act.
(e) whether it is just and equitable to make an order with respect to the application for the benefit of all or any of the parties to, and the children of a marriage of the whole or part of any property dealt with by ante- nuptial or post-nuptial settlements made in relation to the marriage within the meaning of s 85A of the Family Law Act.”
These are matters that no doubt would arise in the further course of these proceedings.
I am satisfied that I have no alternative but to list the matter for a hearing. I have made comments during the course of this matter which in my mind make it proper that I should disqualify myself from further hearing of the matter. I have determined that the matter should be listed therefore before another Judge in a duty list and I will do that by listing the matter before a Judge other than myself on 13 February 2012.
I order that the wife within 10 days file and serve an amended application or document setting out with precision the orders that she now seeks that the Court make.
I note that there is no appearance by or on behalf of the wife here today. No application for costs is before me. I make it clear that any such application will have to be made in accordance with the Rules of Court.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 13 December 2011.
Legal Associate:
Date: 3 February 2012
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