Barre & Barre

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.