Jennings & Ellerton - [2021] FCCA 1213

FEDERAL CIRCUIT COURT OF AUSTRALIA
Jennings & Ellerton [2021] FCCA 1213

File number(s): ADC 4050 of 2020

Judgment of: JUDGE C KELLY

Date of judgment: 15 March 2021

Catchwords: FAMILY LAW – Binding Financial Agreement – interpretation – enforceable – spousal maintenance

Legislation: Family Law Act 1975 (Cth) ss 90E, 90F

Cases cited:
Guild & Stasiuk [2019] FamCA 167

Cumpton & Rainford [2020] FCCA 3441

Number of paragraphs: 27

Date of hearing: 15 March 2021

Place: Adelaide

Counsel for the Applicant: Ms Ross

Solicitor for the Applicant: Camatta Lempens Pty Ltd

Counsel for the Respondent: Ms Boyle

Solicitor for the Respondent: Duncan Basheer Hannon
ORDERS

ADC 4050 of 2020

BETWEEN:
MR JENNINGS
Applicant

AND:
MS ELLERTON
Respondent

ORDER MADE BY:

JUDGE C KELLY

DATE OF ORDER:

15 MARCH 2021

THE COURT ORDERS THAT:
1.Pursuant to section 90F of the Family Law Act 1975, the Applicant is permitted to proceed with his Amended Application for Spousal Maintenance filed 19 February 2021.
2.The Respondent file and serve her Financial Statement within 14 days.
3.The parties exchange proposals in relation to interim/urgent spousal maintenance within a further seven (7) days thereafter.
4.In the event no agreement is reached, the Applicant file one Affidavit to be relied upon in relation to his Application for urgent or interim spousal maintenance, to be filed no later than 21 April 2021.
5.Liberty to the Respondent to rely upon her Affidavits filed 4 November 2020 and 25 January 2021.
6.Each party provide discovery of all relevant financial documents.
7.The matter is adjourned to 30 April 2021 at 9.30am (allowing ½ hour).
8.At least 48 hours prior to the adjournment, each party file and exchange brief written submissions not to exceed three (3) pages in length.

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 under the pseudonym Jennings & Ellerton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge C Kelly
These reasons were delivered orally at the conclusion of an interim argument. They have been edited and corrected from transcript to correct any grammatical errors and generally to make my oral reasons easier to read.

These proceedings relate to the parties’ Binding Financial Agreement dated 21 April 2006 (“the Agreement”) and, in particular, the provisions relating to spousal maintenance. The applicant is seeking a declaration that the whole of the Agreement is invalid and should be set aside. In the alternative, and more specifically for today’s purposes, the applicant seeks a declaration that those clauses relating to spousal maintenance be declared void or of null effect. Following on from that he seeks to pursue an order for interim spousal maintenance.
The parties agree that recital 4.2.2 and clauses 19, 20 and 21 of the Agreement address the topic of spousal maintenance. Recital 35 also makes it clear that…

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 Jennings & Ellerton

Details

AGLC: Jennings & Ellerton [2021] FCCA 1213
Case: [2021] FCCA 1213
Decision Date: 15 March 2021

CaseChat Overview and Summary

In the matter of *Jennings & Ellerton*, heard by C Kelly J in the Federal Circuit and Family Court of Australia, Mr Jennings (the applicant) sought spousal maintenance from Ms Ellerton (the respondent). The dispute concerned the applicant's eligibility to apply for spousal maintenance, notwithstanding a prior agreement between the parties.

The primary legal issue before the court was whether the applicant was entitled to proceed with his application for spousal maintenance pursuant to section 90F of the *Family Law Act 1975* (Cth), despite the existence of an agreement made in 2006. This involved determining if the applicant was likely to have been eligible for an income-tested pension, allowance, or benefit from the Australian Government at the time the agreement came into effect.

C Kelly J reasoned that, based on the evidence presented, the applicant was likely eligible for an income-tested government pension or benefit at the relevant time. Consequently, the court found that section 90F(1A) of the *Family Law Act 1975* applied, entitling the applicant to proceed with his spousal maintenance application notwithstanding the 2006 agreement. The court noted that it could not hear submissions on the spousal maintenance application itself on that day and that an application to set aside the entire agreement also remained before the court.

The court made orders permitting the applicant to proceed with his amended application for spousal maintenance. Further orders directed the respondent to file her financial statement, for the parties to exchange proposals regarding interim spousal maintenance, and for discovery of financial documents. The matter was adjourned for further consideration, with directions for written submissions to be filed prior to the adjourned hearing.

Orders

Orders of the court

ADC 4050 of 2020

BETWEEN:

MR JENNINGS

Applicant

AND:

MS ELLERTON

Respondent

ORDER MADE BY:

JUDGE C KELLY

DATE OF ORDER:

15 MARCH 2021

THE COURT ORDERS THAT:

1. Pursuant to section 90F of the Family Law Act 1975, the Applicant is permitted to proceed with his Amended Application for Spousal Maintenance filed 19 February 2021.

2. The Respondent file and serve her Financial Statement within 14 days.

3. The parties exchange proposals in relation to interim/urgent spousal maintenance within a further seven (7) days thereafter.

4. In the event no agreement is reached, the Applicant file one Affidavit to be relied upon in relation to his Application for urgent or interim spousal maintenance, to be filed no later than 21 April 2021.

5. Liberty to the Respondent to rely upon her Affidavits filed 4 November 2020 and 25 January 2021.

6. Each party provide discovery of all relevant financial documents.

7. The matter is adjourned to 30 April 2021 at 9.30am (allowing ½ hour).

8. At least 48 hours prior to the adjournment, each party file and exchange brief written submissions not to exceed three (3) pages in length.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note the applicant transferred his interest in Company B to his son Mr E in the months following separation, allegedly in lieu of various debts he owed to his son. Whether those debts related to financial support provided by Mr E, or related to the business, is unclear, but I do not consider this affects my decision in this matter today. CONCLUSION On the evidence before me, I am satisfied that at the time the Agreement in relation to spousal maintenance came into effect, the applicant was likely to have been eligible for an income-tested pension, allowance or benefit from the Australian Government. Accordingly, pursuant to s.90F(1A), he is entitled to proceed with an application for spousal maintenance, notwithstanding the terms of the 2006 Agreement and I make orders accordingly. The Court is unable to hear submissions regarding that application today and it will need to be adjourned. The application to set aside the whole of the Agreement also remains before the Court. I will adjourn these proceedings to another date and will make orders for the respondent to file her Financial Statement (regarding the spousal maintenance issue) and for the parties to provide discovery of relevant financial documents. The parties should also undertake some sensible, focussed negotiations, in light of my decision today. I now make orders as published at the commencement of these Reasons.

Ratio Decidendi

Legal Principle Established

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File number(s):	ADC 4050 of 2020
Judgment of:	JUDGE C KELLY
Date of judgment:	15 March 2021
Catchwords:	FAMILY LAW – Binding Financial Agreement – interpretation – enforceable – spousal maintenance
Legislation:	Family Law Act 1975 (Cth) ss 90E, 90F
Cases cited:	Guild & Stasiuk [2019] FamCA 167 Cumpton & Rainford [2020] FCCA 3441
Number of paragraphs:	27
Date of hearing:	15 March 2021
Place:	Adelaide
Counsel for the Applicant:	Ms Ross
Solicitor for the Applicant:	Camatta Lempens Pty Ltd
Counsel for the Respondent:	Ms Boyle
Solicitor for the Respondent:	Duncan Basheer Hannon

ADC 4050 of 2020
BETWEEN:	MR JENNINGS Applicant
AND:	MS ELLERTON Respondent

ORDER MADE BY:	JUDGE C KELLY
DATE OF ORDER:	15 MARCH 2021