Gilford & Cavaco - [2023] FedCFamC1F 398

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gilford & Cavaco [2023] FedCFamC1F 398

File number(s): BRC 15584 of 2021

Judgment of: BAUMANN J

Date of judgment: 21 September 2023

Catchwords: FAMILY LAW – SPOUSE MAINTENANCE – Where final property adjustment orders were by consent in April 2022 – Where the Applicant introduced a claim for spouse maintenance pursuant to s 90E nine months out of time – Application for leave to proceed out of time dismissed

Legislation: Family Law Act 1975 (Cth) ss 90SE, 90SG, 90SI, 90SM, 44(6)

Cases cited:
Dimmick & Harrison [2023] FedCFamC1A 81

Edmunds & Edmunds (2018) FLC 93-847

Gadzen & Simkin (2018) FLC 93-871

Irvine& Irvine [2021] FamCA 541

Sharp & Sharp (2011) 50 Fam LR 567

Division: Division 1 First Instance

Number of paragraphs: 20

Date of last submission/s: 5 May 2023

Date of hearing: 29 March 2023

Place: Brisbane

Solicitor for the Applicant: Litigant in person

Solicitor for the Respondent: Queensland Family Law Practice
ORDERS

BRC 15584 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GILFORD

Applicant

AND:
MR CAVACO

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

22 SEPTEMBER 2023

THE COURT ORDERS:
1.That the Applicant’s Application for leave to commence spouse maintenance proceedings be dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilford & Cavaco has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:

On 28 April 2022, the parties resolved their de facto property dispute when consent Orders were made in the following terms:
1.A declaration be made under section 90RD that a de facto relationship existed between the parties between:
a. 1 June 2007 and 10 February 2009; and
b. 10 May 2018 and 24 November 2019.
2.In accordance with the Family Law Act 1975 (Cth) ss 90SF, an amount of SIXTY THOUSAND ($60,000.00) be transferred out of the Respondent’s Superannuation Account into the Applicant’s nominated Superannuation Fund as required by section 90XT(4) of the Family Law Act 1975 (Cth).
3.In accordance with paragraph 90XT(1)(a) of the Family Law Act 1975 (Cth):
a.the Applicant be entitled to $60,000 from the Respondent’s [Superannuation Fund 1] plan under [Superannuation Fund 1] (member number …);
b.that the Trustee of [Superannuation Fund 1] ([B Pty Ltd]) shall do all acts and…

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.

Continue reading Gilford & Cavaco

Details

AGLC: Gilford & Cavaco [2023] FedCFamC1F 398
Case: [2023] FedCFamC1F 398
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute regarding an application for interim and final spouse maintenance by the Applicant against the Respondent. The case was heard in the Family Court of Australia, and the primary focus was on the financial circumstances of the parties and the appropriateness of the orders sought by the Applicant. The Applicant had initially sought an interim maintenance order of $551 per week but did not pursue a final maintenance order, citing a lack of legal advice or inadequate legal advice as the reason. The court noted that the final consent orders were made in relation to property interests and not for spouse maintenance.

The legal issues that the court had to address included whether the Applicant had provided a sufficient explanation for not applying for a final maintenance order, the nature of the superannuation splitting order as it pertained to spouse maintenance, and the Applicant's current claim for spouse maintenance which appeared to be linked to further study and family counselling. Additionally, the court had to consider the Applicant's financial position as outlined in her financial statement sworn in November 2021, which revealed a gross salary, various debts, and specific expenses.

The court concluded that the Applicant had not provided a satisfactory explanation for not seeking a final maintenance order and that the superannuation splitting order was intended as a form of lump sum maintenance. The court also found that the Applicant's current claim for ongoing maintenance was not supported by the evidence presented and that the matters raised about the final property orders were not relevant to the issue of granting leave for spouse maintenance orders. The court further noted that the Applicant's financial statement indicated a relatively stable financial position at the time of the application.

The final orders of the court were not explicitly detailed in the summary provided, but it is clear that the court did not grant the leave to pursue the spouse maintenance orders as requested by the Applicant. The court's reasoning focused on the procedural aspects of the application and the lack of a compelling basis for the ongoing maintenance claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I find that:(a)no real explanation is offered by the Applicant as to why, when she sought an order for interim spouse maintenance of $551 per week, she sought no final order for maintenance, save for lack of legal advice (or inadequate legal advice);(b)where there is no application on a final basis for spouse maintenance, it is hardly surprising that, at Order 8 of the final consent Orders, it is recorded that “[t]hese orders are made by way of alteration of property interests pursuant to Section 90sm of the Family Law Act 1975”;(c)the Applicant’s admission in her submissions that the superannuation splitting order was negotiated as “a s 90SF order for spouse maintenance” is not inviting the Court to consider confidential discussions that took place during the Conciliation Conference, but rather, in my view, a concession by the mother from her perspective that the superannuation split was for lump sum spouse maintenance;(d)it appears that at around the time the Applicant received her cash payment of $120,000 in August 2022 (later than the date set out in Order 4), she then decided to pursue her current spouse maintenance claim – but in a form that seeks, confusingly, to provide a connection between payment of spouse maintenance (originally only to 25 April 2025) with the Applicant undertaking further study and also engaging in some family counselling with X;(e)much of the submissions made by the Applicant raise concerns about whether the final property orders were “just and equitable”; the lack of timely disclosure made by the Respondent before those Orders were made; whether a “collateral” agreement existed at the time of the Orders for the Respondent to buy the Applicant a two bedroom unit and even, it seems, a suggestion she was either under duress or at least significant financial pressure when she entered into the final property Orders. These matters may be relevant if the Applicant pursues an application to set aside the property Orders, but they are not relevant to the issue of granting leave to pursue spouse maintenance orders;(f)it is noted that the wife’s subsequent amended Initiating Application filed 29 May 2023 now seeks for the maintenance payment Order to be for $520 per week and to extend to 25 April 2028;(g)in considering the Applicant’s financial position at the time the standard application period ended in November 2021, the Applicant’s Financial Statement sworn 22 November 2021 is highly relevant. It speaks for itself, however in summary the Applicant deposes to:(i)a gross salary of $1,089 a week attracting tax of $271 per week;(ii)a rent obligation at that time of $500 (now said to be $600 per week);(iii)a personal HECS/HELP debt of $31,505;(iv)at Part N, her weekly personal expenses (not including rent) are claimed to be $566 and the children’s expenses being $436;(v)receiving, at that time:(A)Centrelink benefits by way of a single parent payment ($40.33 per week) and family tax benefit ($142.73 per week); and(B)child support paid by the Respondent of $426 per week (which of course is not taxed in the hands of the Applicant).CONCLUSION

Ratio Decidendi

Legal Principle Established

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File number(s):	BRC 15584 of 2021
Judgment of:	BAUMANN J
Date of judgment:	21 September 2023
Catchwords:	FAMILY LAW – SPOUSE MAINTENANCE – Where final property adjustment orders were by consent in April 2022 – Where the Applicant introduced a claim for spouse maintenance pursuant to s 90E nine months out of time – Application for leave to proceed out of time dismissed
Legislation:	Family Law Act 1975 (Cth) ss 90SE, 90SG, 90SI, 90SM, 44(6)
Cases cited:	Dimmick & Harrison [2023] FedCFamC1A 81 Edmunds & Edmunds (2018) FLC 93-847 Gadzen & Simkin (2018) FLC 93-871 Irvine& Irvine [2021] FamCA 541 Sharp & Sharp (2011) 50 Fam LR 567
Division:	Division 1 First Instance
Number of paragraphs:	20
Date of last submission/s:	5 May 2023
Date of hearing:	29 March 2023
Place:	Brisbane
Solicitor for the Applicant:	Litigant in person
Solicitor for the Respondent:	Queensland Family Law Practice

BRC 15584 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GILFORD Applicant
AND:	MR CAVACO Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	22 SEPTEMBER 2023