Guild & Stasiuk - [2019] FamCA 167

FAMILY COURT OF AUSTRALIA

GUILD & STASIUK

[2019] FamCA 167

FAMILY LAW – FINANCIAL AGREEMENT – Spousal maintenance clause – s 90E Family Law Act 1953 (Cth) – whether the words of the agreement have to be precise to exclude the spousal maintenance jurisdiction of the court.

Acts Interpretation Act 1901 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Family Law (Amendment) Act 2000 (Cth)

Masoud and Masoud (2016) FLC 93-689
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Toll (FGCT) Pty Limited v Alphapharm Pty Ltd (2004) 219 CLR 165

APPLICANT:

Ms Guild

RESPONDENT:

Mr Stasiuk

FILE NUMBER:

MLC

13949

2018

DATE DELIVERED:

22 March 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

18 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson QC

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Ms Stoikovska SC

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

Orders

That until further order, the husband pay spousal maintenance as follows:
(a)$500 per week (payable in arrears) with the first payment due on 25 March 2019;
(b)All mortgage repayments, rates, taxes, utilities and insurances relating to the B Street property as and when they fall due; and
(c)Private health insurance cover at the pre-separation level of the parties.
Until further order and pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the husband pay to the wife for the children X born 2009 and Y born 2013 the following:
(a)All private school fees including arrears and extra-curricular and sporting expenses at D School;
(b)School uniforms (including sports uniforms), books, stationery and computer costs;
(c)School travel expenses, excursion costs and school camp costs; and
(d)Hospital, medical and dental expenses not covered by any health insurance rebate.
The payments referred to in paragraph (2) hereof are not to be credited against any assessment of child support.
ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR THE DETERMINATION OF THE THRESHOLD ISSUE RELATING TO THE VALIDITY OF THE DOCUMENT CALLED “PRENUPTIAL AGREEMENT” DATED 7 JUNE 2008 before the Honourable Justice Wilson at 10.00am on 30 May 2019 subject to any part heard case as a two day case.
The evidence in chief of all witnesses shall be given by affidavit.
TIMETABLE:
By 4 pm on 5 April 2019 the applicant wife file and serve upon all other parties:
(a)All further affidavits of evidence to be relied upon; and
(b)a financial statement.
The applicant wife pay all required court fees by 4 pm on 5 April 2019.
By 4 pm on 26 April 2019 the respondent husband file and serve upon all other parties:
(a) all further affidavits of evidence to be relied upon; and
(b) a financial statement.
By 4 pm on 3 May 2019 the applicant wife file and serve any affidavit in reply.
Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.
SUBPOENAE
All parties have…

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 Guild & Stasiuk

Details

AGLC: Guild & Stasiuk [2019] FamCA 167
Case: [2019] FamCA 167
Decision Date: 22 March 2019

CaseChat Overview and Summary

In the matter of Guild & Stasiuk, Cronin J of the Federal Circuit Court of Australia made orders concerning spousal and child maintenance, and the procedural progression of the case. The dispute involved an application by the wife for maintenance, alongside a significant threshold issue regarding the validity of a prenuptial agreement dated 7 June 2008.

The court was required to determine the immediate financial obligations of the husband towards the wife and children, pending the resolution of the validity of the prenuptial agreement. Specifically, the court needed to establish the quantum and nature of spousal maintenance, as well as the extent of the husband's financial responsibility for the children's private schooling and associated expenses, separate from any statutory child support assessment.

Cronin J ordered the husband to pay spousal maintenance of $500 per week, in addition to covering all mortgage repayments, rates, taxes, utilities, and insurances for the B Street property, and maintaining private health insurance at the pre-separation level. Furthermore, pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth), the husband was ordered to pay for all private school fees, including arrears and extra-curricular expenses, school uniforms, books, stationery, computer costs, school travel, excursions, camps, and any medical expenses not covered by insurance. These child-related payments were explicitly stated as not being creditable against any child support assessment. The court also adjourned all applications, fixing the determination of the validity of the prenuptial agreement for 30 May 2019, and established a detailed timetable for the filing of affidavits and financial statements by both parties, with provisions for subpoenas and the filing of a case outline.

Orders

Orders of the court

That until further order, the husband pay spousal maintenance as follows:

(a) $500 per week (payable in arrears) with the first payment due on 25 March 2019;

(b) All mortgage repayments, rates, taxes, utilities and insurances relating to the B Street property as and when they fall due; and

Until further order and pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the husband pay to the wife for the children X born 2009 and Y born 2013 the following:

(a) All private school fees including arrears and extra-curricular and sporting expenses at D School;

(b) School uniforms (including sports uniforms), books, stationery and computer costs;

(d) Hospital, medical and dental expenses not covered by any health insurance rebate.

The payments referred to in paragraph (2) hereof are not to be credited against any assessment of child support.

ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR THE DETERMINATION OF THE THRESHOLD ISSUE RELATING TO THE VALIDITY OF THE DOCUMENT CALLED “PRENUPTIAL AGREEMENT” DATED 7 JUNE 2008 before the Honourable Justice Wilson at 10.00am on 30 May 2019 subject to any part heard case as a two day case.

The evidence in chief of all witnesses shall be given by affidavit.

TIMETABLE:

By 4 pm on 5 April 2019 the applicant wife file and serve upon all other parties:

(a) All further affidavits of evidence to be relied upon; and

(b) a financial statement.

The applicant wife pay all required court fees by 4 pm on 5 April 2019.

By 4 pm on 26 April 2019 the respondent husband file and serve upon all other parties:

(a) all further affidavits of evidence to be relied upon; and

(b) a financial statement.

By 4 pm on 3 May 2019 the applicant wife file and serve any affidavit in reply.

10.

Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

SUBPOENAE

11.

All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

12.

By 4 pm on 29 May 2019 all parties file electronically to … a case outline in one document setting out:

(a) the outline of the issues in dispute;

(b) the list of the affidavits to be read;

(d) the list of objections to evidence requiring a ruling;

AND THE PARTIES SHOULD NOTE:

Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

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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