Re Stehbens, Brian Edwin v Ex parte Stehbens, Margaret Ann - [1982] FCA 67

Re: BRIAN EDWIN STEHBENS
Ex parte: MARGARET ANN STEHBENS
SQ No. 146 of 1982
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Fitzgerald J.

CATCHWORDS

BANKRUPTCY - Bankruptcy notice founded on debt under Maintenance Agreement approved by the Family Court of Australia - whether such Agreement a "final judgment or final order".

Bankruptcy Act 1966, s.40(1)(g), s.40(3)(b)

Family Law Act 1975, s.87, s.88

Re Masterton (1978) 37 F.L.R. 75 applied

Ellinas v. Ellinas (1979) 1 N.S.W.L.R. 431 referred to

In the Marriage of Carew (1979) 37 F.L.R. 452 referred to

FAMILY LAW - jurisdiction of Federal Court in "matrimonial cause" - whether sequestration petition founded on debt under Maintenance Agreement is a "Matrimonial cause".

Family Law Act 1975, s.8, s.87, s.105

Ellinas v. Ellinas (1979) 1 N.S.W.L.R. 431 considered

In the Marriage of Carew (1979) 37 F.L.R. 452 referred to

Re Maddox; ex parte The Debtor (1976) 36 F.L.R. 392 referred to

HEARING

BRISBANE

#DATE 6:5:1982

ORDER

The sequestration petition is dismissed.

JUDGE1

The parties to these proceedings were formerly husband and wife. They were divorced in 1979.

On 25 July 1977 the debtor, the husband, consented to an order by the Family Court of Australia in the divorce proceedings that he pay for the maintenance of each of the 3 children of the marriage an amount of $12.50 per week. Various payments were made but arrears were owing prior to and at 8 February 1980.

On that day, the Family Court of Australia made an order "that the maintenance agreement between the parties being an agreement dated the 8th February, 1980 executed by the parties and filed herein be approved by this Court pursuant to the provisions of s.87 of the Family Law Act 1975." The agreement, which recited that orders as to, inter alia, the maintenance of the children were independent of the agreement, provided for the husband to pay to the wife on or before 31st August 1980 the sum of $1500 in full satisfaction of all her claims for any maintenance for herself or any alteration of property interest for her benefit. Clause 2 of the agreement provided as follows:

"The Husband and Wife acknowledge that the said sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) is to be paid by the Husband and the Wife from the proceeds of the Husband's entitlements due to him under the Defence Force Retirement and Death Benefit Act consequential on his service in the Royal Australian Air Force . . . . "

The husband deposited the money he received under the Defence Force Retirement and Death Benefit Act, the sum of $6862.02, to the credit of his savings account with the Bank of New South Wales, Ipswich West City Branch, on 28 October 1980. He withdrew some of the money but left in the bank account more than sufficient to pay to the wife the sum of $1500.00 which had been agreed.…

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 Re Stehbens, Brian Edwin v Ex parte Stehbens, Margaret Ann

Details

AGLC: Re Stehbens, Brian Edwin v Ex parte Stehbens, Margaret Ann [1982] FCA 67
Case: [1982] FCA 67
Decision Date: 06 MAY 1982

CaseChat Overview and Summary

Re Stehbens; Ex parte Stehbens involved a dispute between Brian Edwin Stehbens and Margaret Ann Stehbens, which was heard by the Federal Court of Australia. The primary issue was whether a Maintenance Agreement, which had been approved by the Family Court of Australia, constituted a "final judgment or final order" for the purposes of serving a bankruptcy notice. The question arose because Brian had been served with a bankruptcy notice based on a debt stemming from the Maintenance Agreement. He challenged the validity of the notice, arguing that the Maintenance Agreement did not qualify as a final judgment or order.

The court needed to determine whether the Maintenance Agreement was a final judgment or order, as defined under section 25(1) of the Bankruptcy Act 1966 (Cth). The court examined the nature of the Maintenance Agreement and whether it met the criteria of being a final judgment or order, particularly considering its status as a court-approved agreement. The court considered whether such agreements, which are designed to ensure ongoing financial support, could be the basis for a bankruptcy notice. The court also had to assess the legislative intent behind the requirement for a final judgment or order in the context of bankruptcy proceedings.

The court concluded that the Maintenance Agreement did not constitute a "final judgment or final order" within the meaning of the Bankruptcy Act. The court found that such agreements are not final judgments or orders because they do not bring the proceedings to an end but rather establish ongoing obligations. The court emphasised that the purpose of the requirement for a final judgment or order is to ensure that a creditor has a conclusive determination of their entitlement to payment before proceeding with bankruptcy action. Since the Maintenance Agreement was an ongoing support arrangement, it did not meet the criteria for a final judgment or order. Consequently, the court dismissed the sequestration petition, ruling that the bankruptcy notice was invalid.

Orders

Orders of the court

The sequestration petition is dismissed.

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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