FAMILY LAW – BINDING FINANCIAL AGREEMENT – Enforcement – Where there is a financial agreement under s 90B of the Family Law Act 1975 (Cth) – Where financial agreement is binding - Where parties seek enforcement under s 90KA of the Family Law Act 1975 (Cth) – Whether necessary for the Court to resort to equitable remedy of specific performance – Where ss 31 and 32 of the Judiciary Act1903 (Cth) grant wide powers to grant legal and equitable remedies for enforcement of a financial agreement – Where s 90G(2) of the Act give wide discretion to make such orders as it thinks necessary –Where resort to specific performance unnecessary.
FAMILY LAW – BINDING FINANCIAL AGREEMENT – Where creditor of party to binding financial agreement is joined as a party to proceedings under s 90KA of the Act – Where creditor also claims to have had de facto relationship with that party for a period in excess of two years - Whether creditor has standing to set aside the binding financial agreement.
FAMILY LAW – BINDING FINANCIAL AGREEMENT – Enforcement – Certainty of terms – Where parties themselves make no challenge to the certainty of the terms of a binding financial agreement – Whether Court must form its own view of the certainty of the terms of a binding financial agreement before enforcement orders can be made.
FAMILY LAW – BANKRUPTCY – Where husband becomes bankrupt on his own petition after judgment is reserved – Where trustee in bankruptcy makes no election pursuant to s 60 of theBankruptcy Act 1966 (Cth) – Where husband’s claims stayed but not deemed to be abandoned.
FAMILY LAW – BANKRUPTCY – Property of the bankrupt – Where husband becomes bankrupt on his own petition after judgment is reserved –.Whether right to litigate enforcement of a binding financial agreement is a chose in action and property of the bankrupt assigned to the trustee in bankruptcy by force of s 58 of the Bankruptcy Act 1966 (Cth) – Whether the rights of performance, benefits and entitlements of a party in a binding financial agreement are assignable choses in action and property of the bankrupt assigned to his trustee in bankruptcy.
FAMILY LAW – BANKRUPTCY – Jurisdiction in bankruptcy – Where trustee in bankruptcy becomes a party to proceedings under s 90KA of Part VIIIA of the Act for enforcement of a binding financial agreement – Whether proceedings to enforce a binding financial agreement are “property settlement proceedings in relation to either or both of the parties to the marriage” – Meaning of proceedings “with respect totheproperty of a party to a marriage or either of them” and “the vested bankruptcy property in relation to a bankrupt party to the marriage” – Whether jurisdiction of Family Court enlarged by force of s 35 of the Bankruptcy Act, 1966 to include jurisdiction “in relation to any matter connected…
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 Barre & Barre
Sign in free to access the full text
Details
AGLC
Barre & Barre [2021] FamCA 101
Case
[2021] FamCA 101
Decision Date
CaseChat Overview and Summary
The Family Court of Australia considered proceedings for the enforcement of a binding financial agreement under s 90KA of the *Family Law Act 1975* (Cth). The proceedings involved the parties to the agreement, a creditor of one party who also claimed a de facto relationship, and the trustee in bankruptcy of the husband. The court also addressed issues concerning superannuation splitting orders, child support, and injunctive relief.
The court was required to determine whether it was necessary to resort to the equitable remedy of specific performance for the enforcement of the binding financial agreement, given the broad powers granted by ss 31 and 32 of the *Judiciary Act 1903* (Cth) and the discretion under s 90G(2) of the *Family Law Act*. Further issues included whether the creditor had standing to set aside the agreement, whether the court must independently assess the certainty of the agreement's terms, and the impact of the husband's bankruptcy on the proceedings, particularly whether the right to litigate the enforcement of the agreement constituted a chose in action assignable to the trustee in bankruptcy. The court also considered its jurisdiction to make superannuation splitting orders and departure orders for child support, as well as the appropriateness of injunctive relief in the circumstances.
The court held that resort to specific performance was unnecessary for the enforcement of the binding financial agreement. It found that the creditor lacked standing to set aside the agreement. Regarding the certainty of terms, the court determined that where the parties themselves did not challenge the certainty of a binding financial agreement, the court was not obliged to form its own view on the matter before making enforcement orders. The court also considered the effect of the husband's bankruptcy, noting that his claims were stayed but not abandoned, and that the right to litigate the enforcement of the agreement was a chose in action that passed to the trustee in bankruptcy. The court concluded that it lacked jurisdiction to make superannuation splitting orders under the relevant provisions of the *Family Law Act* in the absence of proceedings pursuant to s 79. Injunctive relief concerning superannuation was refused at that stage, with final determination adjourned. The court also found that it had no jurisdiction to make a child support departure order, citing insufficient evidence and non-compliance with procedural rules.