Johanson & Johanson - [2021] FedCFamC1F 148

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Johanson & Johanson [2021] FedCFamC1F 148

File number(s): BRC 6694 of 2017

Judgment of: BAUMANN J

Date of judgment: 21 October 2021

Catchwords: FAMILY LAW – PROPERTY – Where the Court delivered Reasons for its declaration that a financial agreement is binding upon the parties – Where the Respondent has filed an appeal in respect of that decision – Where the Applicant seeks to enforce the binding financial agreement – Where the Respondent seeks the order be stayed – A conditional stay granted on the basis the Respondent pay the Applicant a sum of $6,000 spousal maintenance per calendar month

Legislation:
Family Law Act 1975 (Cth) s 90KA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12

Cases cited: Aldridge & Keaton (Stay appeal) [2009] FamCAFC 106 Jackamarra v Krakouer (1998) 195 CLR 516

Division: Division 1 First Instance

Number of paragraphs: 22

Date of hearing: 7 October 2021

Place: Brisbane

Counsel for the Applicant: Mr Linklater-Steele

Solicitor for the Applicant: Naughton McCarthy Family Lawyers

Counsel for the Respondent: Ms McLennan

Solicitor for the Respondent: Morgan Mac Lawyers
ORDERS

BRC 6694 of 2017

BETWEEN:
MS JOHANSON

Applicant

AND:
MR JOHANSON

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

21 OCTOBER 2021

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:
1.That pursuant to section 90KA(c) of the Family Law Act 1975 (Cth) (“the Act”), clause 4.2(a) of the Binding Financial Agreement entered into between the parties dated 22 January 2014 (“the financial agreement”) regarding the payment of spousal maintenance to the Applicant by the Respondent is to be enforced as if it were an order of the Court.
2.That pursuant to section 90KA(b) of the Act, the Respondent is liable to the Applicant for interest on any amounts payable to the Applicant pursuant to clause 4.2(a) of the financial agreement, from the time that each amount became due and payable, at the rate prescribed by subsection 117B(1) of the Act and Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
3.That the Respondent pay to the Applicant the sum of $587,632 pursuant to clause 4.2(a) of the financial agreement, representing payments outstanding as of 7 October 2021.
4.That the Respondent pay to the Applicant the sum of $88,096.53, representing interest outstanding on payments required to be made pursuant to clause 4.2(a) of the financial agreement as at 7 October 2021, and increasing in the amount of $98.21 per day, as calculated by Annexure A to the affidavit of Ms Johanson filed contemporaneously with the Application in a Proceeding filed 23 September 2021.

THE COURT ORDERS PENDING DETERMINATION BY THE FULL COURT OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA OF THE RESPONDENT’S NOTICE OF APPEAL:
5.That the further hearing of the Applicant’s Enforcement Application filed 3 July 2017 and the Application in a Case filed 23 September 2021 be stayed, subject to Order 6.
6.That the…

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 Johanson & Johanson

Details

AGLC: Johanson & Johanson [2021] FedCFamC1F 148
Case: [2021] FedCFamC1F 148
Decision Date

CaseChat Overview and Summary

In Johanson & Johanson, the Federal Circuit and Family Court of Australia (Division 1) addressed an appeal regarding the enforcement of a binding financial agreement between the parties. The primary legal issue was whether the enforcement application filed by the Applicant, Ms Johanson, should be stayed pending the determination of the Respondent’s appeal against the Court's earlier decision that the financial agreement was binding. Additionally, if a stay was granted, the court had to determine whether the Respondent should be required to make spousal maintenance payments to the Applicant during the appeal period.

The court considered the principles for granting a stay, emphasizing the arguability of the appeal grounds, the potential prejudice to the Applicant if the enforcement proceeded, and the risk of rendering the appeal nugatory if enforcement actions were taken. The court also examined whether a condition should be imposed on the stay, requiring the Respondent to make spousal maintenance payments to the Applicant. The Applicant argued that the Respondent had the capacity to make such payments, while the Respondent claimed financial incapacity and cited personal and work-related stress as reasons for his inability to pay.

After reviewing the submissions and the untested evidence, the court concluded that the Respondent could afford to make spousal maintenance payments of $6,000 per month to the Applicant. The court found that despite the Respondent’s claims of financial hardship, he had sufficient income to meet his obligations under the financial agreement. Consequently, the court granted a conditional stay, ordering the Respondent to make the specified payments to the Applicant, while the appeal was pending. This decision aimed to balance the interests of both parties and ensure the effective enforcement of the binding financial agreement.

Orders