Pratt and Pratt - [2011] FamCA 606

FAMILY COURT OF AUSTRALIA

PRATT & PRATT

[2011] FamCA 606

FAMILY LAW - MAINTENANCE- Husband to pay –Existence of a de facto relationship

APPLICANT:

Ms Pratt

RESPONDENT:

Mr Pratt

FILE NUMBER:

BRC

3945

2009

DATE DELIVERED:

2 August 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

1 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan of Counsel appearing for the Applicant Wife

SOLICITORS FOR THE APPLICANT:

Kennedy Spanner Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Burridge of Counsel appearing for the Respondent Husband

SOLICITORS FOR THE RESPONDENT:

AM Legal

Orders

IT IS ORDERED THAT:

The Husband’s Application in Form 2 filed 29 April 2011 be dismissed.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The Husband do pay as and by way of maintenance for the Wife an amount of $1,500 per week, the first of such payments to be made from the 2 August 2011 and thereafter monthly in the amount of $6,500 with such amount to be paid into the Wife’s bank account number … at the … branch of the B Bank.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3945/2009

Ms Pratt

Applicant

And

Mr Pratt

Respondent

REASONS FOR JUDGMENT

1.On the 30 May 2011 the Husband filed an amended application in this Court at which he sought at paragraph 4:
1.          That paragraph 4 of the orders made by the Family Court on 22 November 2010 be stayed until further order or until determination of the property proceedings under s 79 of the Family Law Act.
2.          That paragraph 5 be amended to provide that the Husband’s payment to the Wife of $2,000 per month cease after the payment of 1 October 2011.
3.          That the Wife pay the Husband’s costs of and incidental to this application.

2.Very briefly, as I have had such little time in which to prepare, the Husband in his affidavit, and I say in passing that there are two affidavits which are almost identical, one being filed 29 April 2011 and the other being filed 9 May 2011. Referring to both of them the affidavit filed on 29 April 2011 appears to have more documents exhibited to it than the one of the 9 May 2011.
3.It appears that one of the basic complaints of the Applicant in support of his application is that the Wife, see paragraph 5 of the affidavits, has removed certain items from the property known as “C Property” and he indicates that as a result he was going to lessen the payments required by the consent order to which I will now refer of the 12 November 2010. That order required him to make certain payments inter alia:
3. That the Husband pay to the wife’s solicitors trust account the sum of $65,000 within two business days of being advised by 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 Pratt and Pratt

Details

AGLC: Pratt and Pratt [2011] FamCA 606
Case: [2011] FamCA 606
Decision Date

CaseChat Overview and Summary

In *Pratt & Pratt* [2011] FamCA 606, the Family Court of Australia considered an application by the Husband seeking to vary or stay consent orders made in November 2010, which required him to make significant property and maintenance payments to the Wife. The Wife sought dismissal of the Husband's application and an increase in maintenance payments.

The primary legal issues before the Court were whether the Wife was living in a de facto relationship, and if so, whether this disentitled her to maintenance under the consent orders or required a reassessment of the support amount based on her partner's capacity to support her. The Court also had to determine if the Husband had sufficient funds to comply with the existing orders, and whether his application to stay the payments was appropriate given the circumstances.

Justice Bell found that the Husband's attempt to unilaterally reduce payments based on his belief that the Wife had removed property was an improper method of varying a consent order. Regarding the de facto relationship, the Court applied the principles outlined in *Jonah v White* [2011] FamCA 221 and s 4AA of the *Family Law Act 1975* (Cth), considering factors such as common residence, the nature of the relationship, financial dependence, and mutual commitment. On the evidence, the Court was satisfied that while a sexual relationship and some financial interdependence existed, there was insufficient evidence of a mutual commitment to a shared life to establish a de facto relationship. The Court also found, based on the Husband's bank statements, that he had ample funds to meet his maintenance obligations.

Consequently, the Court dismissed all of the Husband's applications. The Court ordered the Husband to pay maintenance of $1,500 per week to the Wife, commencing from 2 August 2011, with subsequent payments to be made monthly in the amount of $6,500.

Orders