Balzia & Covich - [2009] FamCA 1357

FAMILY COURT OF AUSTRALIA

BALZIA & COVICH

[2009] FamCA 1357

FAMILY LAW – FINANCIAL AGREEMENT – whether deed is a financial agreement – whether financial agreement is binding – 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 needed

FAMILY LAW – FINANCIAL AGREEMENT – deed purporting to be BFA executed after parties married – solicitors’ certificates certify advice given pursuant to s.90B ‘Financial agreements before marriage’ – rectification of solicitors’ certificates to refer to s.90C ‘Financial agreements after marriage’ impermissible – different advice required in relation to BFAs for parties contemplating marriage and parties already married

Family Law Act 1975 (Cth)

Black & Black (2008) FLC 93-357
Issa v Berisha (1981) 1 NSWLR 261
Masterton Homes Pty Limited v Palm Assets Pty Limited and Ors [2008] NSWSC 274

APPLICANT:

Ms Balzia

RESPONDENT:

Mr Covich

FILE NUMBER:

PAC

4797

2008

DATE DELIVERED:

27 August 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

27 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Stewart

SOLICITOR FOR THE APPLICANT:

Tony Vella Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Kearney

SOLICITOR FOR THE RESPONDENT:

Kazi Portolesi Lawyers

Orders

Found that the undated document entitled Financial Statement under s 90B of the Family Law Act (as amended) is not a valid financial agreement and is of no force and effect
That the parties attend a conciliation conference with Deputy Registrar Tran at 2.15pm on Friday, 11 September 2009.
That all parties’ costs of today be reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4797 of 2008

MS BALZIA

Applicant

And

MR COVICH

Respondent

REASONS FOR JUDGMENT

Introduction and background

This matter concerns the status and effect of an agreement entered into between Ms Balzia, who I will refer to as the wife, and Mr Covich, the husband. Unfortunately the agreement, which is by way of deed, bears no date upon its face. The deed is expressed on its face to be a financial agreement made pursuant to the provisions of section 90B of the Family Law Act 1975 (Cth) (“the Act”). I do not propose to set out the entire section, but it is common ground and the Act is abundantly clear that an agreement made pursuant to section 90B is an agreement made in contemplation of the parties’ marriage. The deed in its recitals purports to be made on the basis that the parties intend to marry within two months, and in any event the deed is to be of no effect if they do not marry within six months.
The fact is that the parties were married on 19 November 2006. The agreement, and this seems to be common ground, was executed by the wife on 20 November…

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 Balzia & Covich

Details

AGLC: Balzia & Covich [2009] FamCA 1357
Case: [2009] FamCA 1357
Decision Date: 27 August 2009

CaseChat Overview and Summary

In the matter of *Balzia & Covich*, Collier J of the Family Court of Australia considered whether a deed purporting to be a financial agreement under the *Family Law Act 1975* (Cth) was valid and binding. The dispute centred on the enforceability of a document executed after the parties were married, which was intended to regulate their financial affairs.

The primary legal issues before the court were whether the executed deed constituted a valid financial agreement under the Act, and if so, whether it was binding on the parties. Crucially, the court had to determine the significance of the solicitors' certificates attached to the deed, which referred to advice given pursuant to section 90B of the Act (financial agreements before marriage), rather than section 90C (financial agreements after marriage).

Collier J applied the principles established in *Black & Black*, holding that the onus rests on the party seeking to rely on a Binding Financial Agreement to demonstrate its strict compliance with the requirements of section 90G of the *Family Law Act*. Her Honour found that the solicitors' certificates, by referencing section 90B, were demonstrably incorrect given the timing of the deed's execution after the marriage. The court determined that rectification of these certificates to refer to section 90C was impermissible, as the legal advice required for pre-nuptial agreements differs from that for post-nuptial agreements. Consequently, the undated document was found not to be a valid financial agreement and was therefore of no force or effect.

The court ordered that the document was not a valid financial agreement and was of no force and effect. The parties were directed to attend a conciliation conference, and all parties' costs of the day were reserved.

Orders

Orders of the court

Found that the undated document entitled Financial Statement under s 90B of the Family Law Act (as amended) is not a valid financial agreement and is of no force and effect

That the parties attend a conciliation conference with Deputy Registrar Tran at 2.15pm on Friday, 11 September 2009.

That all parties’ costs of today be reserved.

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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