Adamidis and Adamidis - [2009] FMCAfam 1104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ADAMIDIS & ADAMIDIS

[2009] FMCAfam 1104

FAMILY LAW – Property proceedings – application to set aside a binding financial agreement.

Family Law Act 1975, ss.90G, 90E, 90K

Australian Securities and Investment Commission v Rich and Another (2004) 31 FamLR 667
J and J [2006] FamCA 442
B and B (2008) 38 FamLR 503; FLC 93-357
Gardiner and Baker [2009] FMCAfam 1029
Tsarouhi and Tsarouhi [2009] FMCAfam 126
Blackmore & Webber [2009] FMCAfam 154
Kostres v Kostres (2009) 40 FamLR 228

Applicant:

MR ADAMIDIS

Respondent:

MS ADAMIDIS

File Number:

SYC 7576 of 2008

Judgment of:

Lapthorn FM

Hearing date:

18 September 2009

Date of Last Submission:

18 September 2009

Delivered at:

Newcastle

Delivered on:

22 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Thomas

Solicitors for the Applicant:

Lapaine Pomare & Forster Solicitors

Solicitor for the Respondent:

Mr Fatches

Solicitors for the Respondent:

Fatches Jones Lawyers

ORDERS

That the words: ‘and to the maintenance of the parties’ in Recital H of the Binding Financial Agreement dated 7 November 2006 be severed from that Recital;
That the words: ‘as well as spousal maintenance’ in Recital I of the Binding Financial Agreement dated 7 November 2006 be severed from that Recital;
Declaration that other than as provided for in these orders the Agreement entered into between the parties dated 7 November 2006 is a Binding Financial Agreement pursuant to Section 90G of the Family Law Act 1975;
That the husband have leave, within 21 days, to further amend his amended Initiating Application filed 6 April 2009 to seek an order for spouse maintenance.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

SYC 7576 of 2008

MR ADAMIDIS

Applicant

And

MS ADAMIDIS

Respondent

REASONS FOR JUDGMENT

Introduction

In November 2006 Mr Adamidis and Ms Adamidis entered into an agreement in relation to property settlement upon the breakdown of their marriage.
The wife says that this agreement is a binding financial agreement under the Family Law Act however the husband says that because of a number of irregularities the agreement should be set aside and that he be permitted to proceed with an application for property settlement.

Brief history

Both the husband and wife are 35 years of age. They commenced to live together in 1996 and married in 2002. They have two children [X] who was born in 2003 and [Y] who was born in 2005.
The parties had a number of separations during their marriage. The husband says that they separated on a final basis in August 2008 whereas the wife says that they separated in around February 2005.
The wife received around $980,000 as an inheritance from her uncle in 2005.
On 7 November 2006 the parties executed a document which was entitled “Financial Agreement under Section 90C of the Family Law Act 1975” and subsequently referred to as…

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 Adamidis and Adamidis

Details

AGLC: Adamidis and Adamidis [2009] FMCAfam 1104
Case: [2009] FMCAfam 1104
Decision Date: 22 October 2009

CaseChat Overview and Summary

Adamidis and Adamidis involved a dispute between the parties concerning the interpretation and enforcement of a Binding Financial Agreement (BFA). The parties came before the Family Court of Australia to resolve issues surrounding the maintenance obligations outlined in the BFA. The central issue was the extent to which the BFA provided for spousal maintenance, and whether the court could modify the BFA to reflect the parties' true intentions. Specifically, the wife argued that the BFA did not provide for spousal maintenance, while the husband contended that it did.

The court had to determine whether certain phrases in the BFA, namely “and to the maintenance of the parties” in Recital H and “as well as spousal maintenance” in Recital I, accurately reflected the maintenance obligations agreed upon by the parties. The wife argued that these phrases were inserted by mistake and did not reflect the true intentions of the parties. The husband, on the other hand, asserted that these phrases were deliberately included to cover spousal maintenance. The court considered the objectives of the Family Law Act 1975, which aims to ensure that BFAs accurately reflect the parties' intentions, and that any ambiguities are resolved in a manner that is fair and just.

After careful consideration, the court found that the phrases in question did not accurately reflect the parties' intentions and severed them from the BFA. The court held that the BFA, as modified, did not provide for spousal maintenance. However, the court also noted that the husband had the right to seek spousal maintenance separately. The court granted the husband leave to amend his application to seek such an order. The court's decision ensured that the BFA accurately reflected the parties' true intentions and provided a clear path for the husband to seek spousal maintenance if warranted.

Orders

Orders of the court

That the words: ‘and to the maintenance of the parties’ in Recital H of the Binding Financial Agreement dated 7 November 2006 be severed from that Recital;

That the words: ‘as well as spousal maintenance’ in Recital I of the Binding Financial Agreement dated 7 November 2006 be severed from that Recital;

Declaration that other than as provided for in these orders the Agreement entered into between the parties dated 7 November 2006 is a Binding Financial Agreement pursuant to Section 90G of the Family Law Act 1975;

That the husband have leave, within 21 days, to further amend his amended Initiating Application filed 6 April 2009 to seek an order for spouse maintenance.

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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