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Abrum & Abrum

Abrum & Abrum

Case [2013] FamCA 897 19 November 2013

Contract Formation

Procedural Fairness

Statutory Construction

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FAMILY COURT OF AUSTRALIA

ABRUM & ABRUM

[2013] FamCA 897

FAMILY LAW – PROPERTY SETTLEMENT – FINANCIAL AGREEMENTS – whether financial agreement is binding – where the financial agreement deals with but one property and save for purporting to deal with the parties’ rights under the Family Law Act against that property leaves intact their other rights under that Act – where the onus on party relying on Binding Financial Agreement to oust jurisdiction of court to establish document is a BFA – Black & Black – strict compliance with section 90G requirements necessary –Whether an order under section 90G(1B) should be made – where the Financial Agreement found to be binding.

Family Law Act 1975 (Cth) ss 75(2), 79, 90G
Acts Interpretation Act 1901 (Cth)

Black & Black (2008) FLC 93-357
Hoult & Hoult [2013] FamCAFC 109
Senior & Anderson (2011) FLC 93-470

APPLICANT:

Mr Abrum

RESPONDENT:

Ms Abrum

FILE NUMBER:

SYC

791

2012

DATE DELIVERED:

19 November 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

10 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Gould
SOLICITOR FOR THE APPLICANT:	Fox O’Brien Lawyers

COUNSEL FOR THE RESPONDENT:	Mr Othen
SOLICITOR FOR THE RESPONDENT:	Southern Waters Legal

Orders

That pursuant to s 90G(1B) of the Family Law Act1975 (Cth) the court declares that the financial agreement entered into by Mr Abrum and Ms Abrum on 7 February 2007 is binding.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 791 of 2012

Mr Abrum

Applicant

And

Ms Abrum

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Abrum (“the husband”) seeks orders enforcing, between him and Ms Abrum (“the wife”), an agreement made on 7 February 2007 which purports to be a Binding Financial Agreement within the meaning of s 90G of the Family Law Act1975 (Cth) (“the Act”).
The wife seeks a declaration that the agreement is not binding on the parties because she was not given proper legal advice and because the Certificates of Independent Advice do not comply with the requirements of the Act. She did not seek to set the agreement aside under s 90K of the Act.
In the event that the agreement is found not to comply with the provisions of s 90G the husband seeks an order pursuant to s 90G(1B) that the financial agreement is, nonetheless, binding on the parties.
The financial agreement is unusual in that it deals with but one property of the parties and, save for purporting to deal with the parties’ rights under the Act in relation to that property, leaves intact their other rights under that Act.

Background

The parties were married in March 1997 and separated on 26 August 2011. They have two children who were born in October 2004 and in January 2006.
In May…

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 Abrum & Abrum

Details

AGLC: Abrum & Abrum [2013] FamCA 897
Case: [2013] FamCA 897
Decision Date

CaseChat Overview and Summary

In *Abrum & Abrum*, the husband sought to enforce a financial agreement made on 7 February 2007, which he contended was a Binding Financial Agreement under section 90G of the *Family Law Act 1975* (Cth). The wife disputed the agreement's binding nature, arguing she did not receive proper legal advice and that the certificates of independent legal advice were non-compliant. She did not seek to set aside the agreement under section 90K. The husband also sought an order under section 90G(1B) of the Act declaring the agreement binding, even if it did not strictly comply with section 90G. The Family Court of Australia heard the matter.

The central legal issues before the court were whether the financial agreement met the strict requirements of section 90G of the *Family Law Act 1975* (Cth) to be considered binding, and if not, whether an order under section 90G(1B) should be made to declare it binding. Specifically, the court had to determine if the wife received the requisite independent legal advice regarding the effect of the agreement on her rights, and if the accompanying legal practitioner's statements complied with the Act's provisions. The unusual nature of the agreement, which dealt with only one property and purported to oust the court's jurisdiction in relation to that property while leaving other rights intact, was also a significant factor.

The court applied the principle that strict compliance with section 90G is mandatory, as established in cases like *Black & Black*. It found that to provide effective advice under section 90G(1)(b), a legal practitioner must identify a party's existing rights under the Act, such as those under sections 79 and 75(2), to enable a comparison with the proposed agreement's terms. The court noted that the solicitor, Mr. Lodge, did not inquire into the parties' assets and liabilities, the history of the marriage, or the wife's contributions and earning capacity, nor did he explain the effect of sections 79 or 75(2) of the Act. This lack of specific advice meant the wife could not have been adequately informed of the advantages and disadvantages of the agreement in comparison to her potential rights under the Act.

The court declared that the financial agreement entered into by the parties on 7 February 2007 was binding pursuant to section 90G(1B) of the *Family Law Act 1975* (Cth).

Orders