WESTACOTT & DUNWOODY - [2019] FamCA 531

FAMILY COURT OF AUSTRALIA

WESTACOTT & DUNWOODY

[2019] FamCA 531

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where consideration of applicable principles – Where husband has onus proving inability to support himself adequately – Where such not established on the evidence of the husband – Where application dismissed.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 72, 74, 75(2), 90E

Bevan & Bevan (1995) FLC 92-600
Redman and Redman [1987] FamCA 2

APPLICANT:

Mr Westacott

RESPONDENT:

Ms Dunwoody

FILE NUMBER:

PAC

1144

2019

DATE DELIVERED:

9 August 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 April 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Dorter Family Lawyers And Mediators

COUNSEL FOR THE RESPONDENT:

Mr Lloyd

SOLICITOR FOR THE RESPONDENT:

Blanchfield Nicholls

Orders

That the husband’s application for interim spousal maintenance be dismissed.

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 Westacott & Dunwoody 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 PARRAMATTA

FILE NUMBER: PAC 1144 of 2019

Mr Westacott

Applicant

And

Ms Dunwoody

Respondent

REASONS FOR JUDGMENT

The application for determination is an application for interim periodic spousal maintenance sought by the husband in the context of primary proceedings commenced by him by Initiating Application filed 13 March 2019 seeking orders as to property adjustment as between himself and the respondent wife.
There are significant issues outstanding between the parties in relation to a section 90B financial agreement dated 12 August 2005 entered into in contemplation of marriage, a subsequent termination agreement relating to that financial agreement and proposed property orders the subject of an Application for Consent Orders filed on 11 December 2018 that was later dismissed for want of any response to requisitions raised by the Registrar. Those issues will be the subject of later determinations.
It is to be noted that the financial agreement dated 12 August 2005 purported to deal with the issue of spouse maintenance in the following terms:
16.If the parties separate neither party shall be entitled to receive any spouse maintenance from the other party.
The efficacy of such a provision in the context of the parties’ relationship in the event that the financial agreement is ultimately found to be binding is governed by the provisions of s 90E of the Family Law Act 1975 (Cth) (“the Act”). That section provides (as it did as at 12 August 2005):
Requirements with respect to provisions in financial agreements relating to the maintenance of a party…

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 WESTACOTT & DUNWOODY

Details

AGLC: WESTACOTT & DUNWOODY [2019] FamCA 531
Case: [2019] FamCA 531
Decision Date: 9 August 2019

CaseChat Overview and Summary

The parties to this proceeding were husband and wife. The husband sought interim spousal maintenance from the wife. The application was heard by Foster J in the Family Court of Australia.

The central legal issue before the court was whether the husband had discharged the onus of proving his inability to adequately support himself. This required the court to consider the principles governing applications for interim spousal maintenance in the Family Court.

Foster J reasoned that the onus rested on the applicant husband to demonstrate that he was unable to support himself adequately. Upon reviewing the evidence presented by the husband, his Honour concluded that this onus had not been discharged. Consequently, the husband's application for interim spousal maintenance was dismissed.

Orders

Orders of the court

That the husband’s application for interim spousal maintenance be dismissed.

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

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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