FAMILY COURT OF AUSTRALIA
| ABATI & COLE | [2015] FamCA 185 |
| FAMILY LAW – PROPERTY – FINANCIAL AGREEMENT – ANTI-SUIT INJUNCTION – Where there is a binding financial agreement – where the husband seeks that a clause of the agreement be severed, it being a provision for child maintenance and void by operation of s 90E(a) – where the wife seeks to restrain the husband from instituting or prosecuting proceedings overseas with respect to her separate property – whether the court has jurisdiction and power to make the injunction sought – consideration of the purpose of financial agreements – consideration of the parties’ intention in entering into the financial agreement – clause severed – anti-suit injunction granted. |
| Acts Interpretation Act 1901 (Cth) s 15AA Family Law Act 1975 (Cth) ss 4, 31, 71A, 87(11), 90B, 90E, 90KA Family Law Rules 2004 (Cth) rr 20.01, 20.02 |
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
| CSR Limited v Cigna Insurance Australia Limited & Ors (1997) 189 CLR 345 Fevia & Carmel-Fevia (2009) FLC 93-411 Knight & FP Special Assets Ltd (1992) 174 CLR 178 Kostres & Kostres (2009) FLC 93-420 Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 Senior & Anderson (2011) FLC 93-470 |
The Owners of the Ship Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 404
| APPLICANT: | Ms Abati |
| RESPONDENT: | Mr Cole |
| FILE NUMBER: | MLC | 10475 | of | 2013 |
| DATE DELIVERED: | 23 March 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 26 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr T North SC |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr G Richardson SC |
| SOLICITOR FOR THE RESPONDENT: | Harris Freidman Lawyers |
ORDERS
IT IS DECLARED THAT
A.Clause 81.1 of the Binding Financial Agreement dated … 2012 is void.
B.The Binding Financial Agreement dated … 2012 is a financial agreement pursuant to s 90B of the Family Law Act 1975 (Cth) and is otherwise binding on the husband and the wife.
IT IS ORDERED THAT
The husband by himself, his servants and agents or howsoever otherwise be and is hereby restrained from seeking relief against the wife in the Denpasar District Court or any other Court in Indonesia with respect to all or any of the wife’s separate property whether that relief is by way of injunction restraining the wife from dealing in any way with respect to any of that property, or any stipulation or declaration that all or any such property is “community property” or a declaration that any “Marital Seizure” of all or any such property is lawful or valuable or any further or other relief with respect to all or any such property.
Pursuant to clause 80 of the Binding Financial Agreement dated 30 April 2012, the husband pay to the wife interest on the sum of $100,000 in accordance with the Family Law Rules 2004 (Cth) calculated from 8 September 2013 to 20 August 2014, being the date…
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- Abati & Cole [2015] FamCA 185
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- [2015] FamCA 185
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CaseChat Overview and Summary
The central legal issues before the court were whether it possessed the jurisdiction and power to grant the anti-suit injunction sought by the wife, and how to interpret the parties' intentions in entering into the financial agreement, particularly in light of the void child maintenance provision. The court was required to consider the purpose of financial agreements under the Act and the implications of severing a void clause.
Macmillan J reasoned that the financial agreement, despite the void child maintenance clause, remained otherwise binding on the parties. The court found that the purpose of the agreement, as evidenced by the parties' intentions, was to regulate their financial affairs, and that the severance of the void clause would not frustrate this overarching purpose. Applying principles of contract law and the *Family Law Act*, the court determined it had the power to grant an anti-suit injunction to prevent the husband from pursuing proceedings in Indonesia that would undermine the binding financial agreement and the wife's separate property rights.
Consequently, the court declared clause 81.1 of the financial agreement void but affirmed the agreement's validity as a binding financial agreement under s 90B of the *Family Law Act*. An anti-suit injunction was granted, restraining the husband from seeking relief against the wife in Indonesian courts concerning her separate property. The court also made orders regarding interest payments, the release of title deeds, and reserved all questions of costs for future determination.
Orders
Orders of the court
IT IS DECLARED THAT
A. Clause 81.1 of the Binding Financial Agreement dated … 2012 is void.
B. The Binding Financial Agreement dated … 2012 is a financial agreement pursuant to s 90B of the Family Law Act 1975 (Cth) and is otherwise binding on the husband and the wife.
IT IS ORDERED THAT
1.
The husband by himself, his servants and agents or howsoever otherwise be and is hereby restrained from seeking relief against the wife in the Denpasar District Court or any other Court in Indonesia with respect to all or any of the wife’s separate property whether that relief is by way of injunction restraining the wife from dealing in any way with respect to any of that property, or any stipulation or declaration that all or any such property is “community property” or a declaration that any “Marital Seizure” of all or any such property is lawful or valuable or any further or other relief with respect to all or any such property.
2.
Pursuant to clause 80 of the Binding Financial Agreement dated 30 April 2012, the husband pay to the wife interest on the sum of $100,000 in accordance with the Family Law Rules 2004 (Cth) calculated from 8 September 2013 to 20 August 2014, being the date of payment by the husband to the Trust Account of Nicholes Family Lawyers.
3.
The Title Deeds produced pursuant to subpoena directed to Mr G issued 1 August 2014 be released to the solicitors for the wife.
4.
All questions of costs be reserved for determination.
5.
On or before 4.00 pm on 17 April 2015 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
6.
On or before 4.00 pm on 15 May 2015 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
7.
All extant applications, save and except for any applications for costs, be otherwise dismissed.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena, save and except for documents produced pursuant to subpoena directed to Mr G issued
1 August 2014, and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel, including senior counsel, to attend.
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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