Min & Orton

[2021] FamCA 502

FAMILY COURT OF AUSTRALIA

Min & Orton [2021] FamCA 502

File number(s):

SYC 1579 of 2021

Judgment of:

REES J

Date of judgment:

12 July 2021

Catchwords:

FAMILY LAW – INTERIM FINANCIAL RELIEF – Application by the wife for spousal maintenance and a “dollar for dollar” order against the husband – Where the wife did not satisfy the threshold of being unable to support herself – Consideration of Salvage & Fosse – Where the Court was not satisfied the wife held “no real prospects of obtaining justice without an order for costs being made” – Applications dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary dismissal – Where the husband seeks to rectify a financial agreement between the parties –Consideration of Karlsson & Karlsson – Where the Court was not satisfied the husband’s case held “no reasonable prospects of success” – Application dismissed.  

Legislation:

Family Law Act 1975 (Cth) ss 45A(2), 45A(3), 90UB, 90UJ(3), 117

Cases cited:

Karlsson & Karlsson [2020] FamCAFC 207

Salvage & Fosse (2020) 61 Fam LR 45; [2020] FamCAFC 144

Number of paragraphs:

44

Date of hearing:

8 July 2021

Place:

Sydney

Solicitor for the Applicant:

Mr Brown, Browns The Family Lawyers

Counsel for the Respondent:

Mr Richardson SC

Solicitor for the Respondent:

Clinch Long Woodbridge Lawyers

ORDERS

SYC 1579 of 2021

BETWEEN:

MS MIN

Applicant

AND:

MR ORTON

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	12 JULY 2021

THE COURT ORDERS:

1.That the wife’s application for interim spousal maintenance filed 8 March 2021 is dismissed.

2.That the wife’s application for summary dismissal of the husband’s response filed 17 May 2021 is dismissed.

3.That the wife’s application for “dollar for dollar” litigation funding is 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Min & Orton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

REES J:

1. Ms Min (“the wife”) and Mr Orton (“the husband”) entered into a Financial Agreement (“the agreement”) on 1 August 2013. That agreement was expressed to be a “Part VIIIAB financial agreement under Section 90UB of the Family Law Act 1975 (Cth)” (“the Act”).

2. Section 90UB of the Act makes provision for parties who contemplate entering into a de facto relationship to enter into a binding financial agreement.

3. Relevantly, for present purposes, the agreement provided for the payment of the sum of $50,000 to the wife on separation and dealt with her rights to spousal maintenance.

4. Section 90UJ(3) provides:

   A Part VIIIAB financial agreement ceases to be binding if, after making the agreement, the parties to the…