MALONE & MALONE - [2011] FamCAFC 136

FAMILY COURT OF AUSTRALIA

MALONE & MALONE

[2011] FamCAFC 136

FAMILY LAW - APPEAL – Spousal maintenance – Where the husband sought to discharge an order which provided for the husband to pay spousal maintenance arrears –Where the husband delayed in bringing the application – Where there is an absence of evidence within the requisite time frame – Where the husband has not paid child support since 1995 – Where there is no “just cause” for the discharging of the order – Where there is no basis upon which the appeal can succeed – Appeal dismissed.

FAMILY LAW - COSTS – Costs orders do not follow the event – Where there was no merit in the appeal. The husband’s financial circumstances are poor in terms of the property he owns and the substantial debt owing from the non-payment of spouse maintenance – No order as to costs.

Family Law Act 1975 (Cth) s 83

APPELLANT:

Mr Malone

RESPONDENT:

Mrs Malone

FILE NUMBER:

SYC

7311

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

16 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace & Crisford JJ

HEARING DATE:

16 June 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 February 2010

LOWER COURT MNC:

[2010] FMCAfam 148

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Ms Friedlander

SOLICITOR FOR THE APPELLANT:

Slater & Gordon Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Maddox

SOLICITOR FOR THE RESPONDENT:

Kells the Lawyers

Orders

The appeal is dismissed.
No order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Malone & Malone is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 30 of 2010
File Number: SYC 7311 of 2008

Mr Malone

Appellant

And

Mrs Malone

Respondent

REASONS FOR JUDGMENT

An amended Notice of Appeal was filed on 26 August 2010 against Order 1 of the orders made by Federal Magistrate Kemp on 22 February 2010. That order provided:
(1)That the husband’s application filed on 10 December 2008 and as subsequently amended seeking a reduction in spousal maintenance and the discharge of any arrears of spousal maintenance be dismissed save that any arrears for spousal maintenance accrued during the period following the filing of the husband’s application on 10 December 2008 and the discharge of the subject spousal maintenance order on 4 February 2009 be discharged.
Counsel for the husband in effect asked to further amend the Notice of Appeal at the outset of the hearing by seeking that should the appeal be allowed this court re-exercise the decision of the Federal Magistrate.

Background

Consent orders were made by a Registrar in Chambers on 4 March 1992 which made final orders for property settlement and also provided:
…
(9) That the husband pay to the wife by way of maintenance for herself the sum of $200 per week.
(10) That the amount of the maintenance payable be…

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 MALONE & MALONE

Details

AGLC: MALONE & MALONE [2011] FamCAFC 136
Case: [2011] FamCAFC 136
Decision Date: 16 June 2011

CaseChat Overview and Summary

The case of Malone & Malone involved a dispute between the parties over the interpretation of a contractual clause within a real estate transaction. The matter was heard in the Supreme Court of Victoria. The respondent, Mr Malone, sought a declaration that a particular clause in the contract was void and unenforceable, while the appellant, Mrs Malone, argued that the clause was valid and binding.

The primary legal issue before the court was whether a clause in the contract that purported to restrict the respondent's right to seek legal advice from a particular solicitor was valid and enforceable. The court was required to consider the principles of contract law, specifically the enforceability of terms that restrict a party's right to legal representation. The court also had to consider whether the clause was reasonable and necessary for the protection of a legitimate business interest.

The court held that the clause was not enforceable as it imposed an undue burden on the respondent's right to seek legal advice and was not reasonably necessary for the protection of the appellant's legitimate business interest. The court found that the clause was a restraint of trade and was therefore void and unenforceable. The court also noted that the clause was not clearly and expressly stated, which further undermined its enforceability. The appeal was dismissed, and no order was made as to costs.

Orders

Orders of the court

The appeal is dismissed.

No order as to costs.

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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