Monahan and Monahan

[2016] FamCA 723

FAMILY COURT OF AUSTRALIA

MONAHAN & MONAHAN [2016] FamCA 723

FAMILY LAW – PROPERTY – Where the wife seeks interim property orders including interim spousal maintenance – Where a binding financial agreement entered into by the parties provides for the wife to receive spousal maintenance – Where the wife seeks orders that the agreement be set aside – Whether section 71A prevents the Court from considering the wife’s application pending determination of whether the agreement should be set aside – Application dismissed.

Family Law Act 1975 (Cth) s 71A

APPLICANT: Ms Monahan

RESPONDENT: Mr Monahan

FILE NUMBER: SYC 4031 of 2016

DATE DELIVERED: 27 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 27 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Conner

SOLICITOR FOR THE APPLICANT: Argyle Lawyers

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Mcauley Hawach Lawyers

Orders

1. Orders 2 and 4 of the wife’s Application in a Case filed 29 June 2016 be dismissed.

2. The remaining aspects of the wife’s Application in a Case filed 29 June 2016 (specifically Orders 3, 5, 6, 7, 8 and 9) are stood over to the listing on 10 October 2016. 

1. In respect to Order 10 of the Application in a Case filed 29 June 2016, I DIRECT each of the  parties to serve on the other a Notice requiring that other party to provide disclosure of documents pursuant rule 13.08 of the Family Law Rules 2004 (Cth)

1. The parties’ costs of today be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4031 of 2016

Ms Monahan

Applicant

And

Mr Monahan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an application for interim spousal maintenance, partial property settlement, injunctive relief, disclosure orders and exclusive occupation of the former matrimonial home.  The wife has relied on an Initiating Application filed 29 June 2016.  The husband’s Response was filed on 26 July 2016.  The husband has relied on his affidavit filed 25 July 2016 and the wife has relied on her affidavit and Financial Statement filed 29 June 2016. 

2. The husband was born in 1974 and the wife was also born in 1974. The parties married in 2012. The parties entered into a binding financial agreement pursuant to section 90C of the Family Law Act 1975 (Cth) (“the Act”) on 11 October 2012 (“the Agreement”). The Agreement is attached to the wife’s affidavit and also to the husband’s Response. In 2013 the parties’ child B was born.

3. In respect to the wife’s application for interim orders, the husband has argued that other than proposed order 6, which deals with an application for the sole use and occupancy of the former matrimonial home, the Court is without jurisdiction to consider this matter as a result of the operation of section 71A of the Act. That section is found within Part VIII of the Act and relevantly provides:

   71A This Part does not apply to certain matters covered by binding financial agreements

   (1) This Part does not apply to:

   (a) financial matters to which a financial agreement that is binding on the parties to the agreement applies; or

   (b) financial resources to which a financial agreement that is binding on the parties to the agreement applies.

   (2) Subsection (1) does not apply in relation to proceedings of a kind referred to in paragraph (caa) or (cb) of the definition of matrimonial cause in subsection 4(1).

4. The provisions referred to in section 71A (2) of the Act are not relevant as they relate to circumstances where a party to the proceedings is the bankrupt trustee of a bankrupt party to the marriage.

5. The power of the Court to make an order for spousal maintenance is contained in section 74 of the Act and the Court’s power to make an order for urgent spousal maintenance is set out in section 77 of the Act. Both of those sections are within Part VIII of the Act.

6. It has been argued on behalf of the wife that section 71A does not apply because clause 5(b) of the Agreement itself makes reference to jurisdiction under the Act remaining. Specifically, clause 5(b) provides:

   In relation to any property which is not separate property, the parties agree that this property will be divided by agreement and if no agreement can be reached by the court in accordance with the Family Law Act 1975 or such other applicable legislation at the time the application is made to the court.

7. While the interpretation of that provision remains a matter to be determined another day, the preferable construction, in my view, is that it is an indication that the Agreement applies in respect to financial matters between the parties other than in respect to property that is not separate property. 

8. That is, clause 5(b) of the Agreement may open up the possibility of the wife seeking orders for adjustment of property, which is not “separate property”, pursuant to section 79 of the Act.

9. Accordingly on that basis, I do not today propose to deal with the husband’s application to strike out the entirety of the wife’s application which includes, for instance, an application for an interim property distribution. I should add that proposed order 5 could perhaps also be pursued under other provisions of the Act that are outside Part VIII. This includes section 117 of the Act insofar as the funds may be sought to pay for legal fees.

10. However, clause 6 of the Agreement clearly applies to spousal maintenance. That clause is as follows:

    6. Spousal Maintenance

    (a) It is agreed by the parties that in the event of the breakdown of the marriage evidenced by separation as set out in paragraph 4 above, [the husband] will pay [the wife] the amount of $1000 per week, by way of spousal maintenance, on the following conditions:

    (i) [The wife] is not engaged in full-time employment; and

    (ii) [The husband] is able to pay, in that [the husband]’s financial circumstances are similar to or have not worsened from those disclosed in this Agreement.

    (b) If spousal maintenance is payable in accordance with paragraph 6(a) above, it is only payable for a period of no more than one month from the date of separation.

11. On that basis, as a result of the operation of section 71A of the Act, I am compelled to find that the Court is without jurisdiction to make the orders for interim spousal maintenance as sought in proposed orders 2 and 4 of the wife’s Initiating Application.

12. The wife’s application for the remaining orders sought in her Initiating Application is stood over to be considered on a date to be fixed. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 27 July 2016.

Associate:

Date: 29 August 2016