FAMILY COURT OF AUSTRALIA
| BLACK & BLACK | [2008] FamCAFC 7 |
| FAMILY LAW - APPEAL – FINANCIAL AGREEMENT – Parties had a short marriage of 18 months during which they entered into a financial agreement – Husband sought to have the financial agreement set aside on the basis that it did not comply with the statutory requirements for a binding financial agreement pursuant to s 90G as it was prior to the 2004 amendments – The trial judge adopted a purposive approach to interpreting the requirements of s 90G and held that the financial agreement was binding – Held on appeal: the financial agreement did not meet the requirements of s 90G(1)(b) in that it failed to include a statement that the parties had received independent legal advice in relation to all matters set out in the then s 90G(1)(b); a strict interpretive approach and strict compliance requirements should be applied where legislation ousts the court’s jurisdiction to make adjustive orders under s 79 – Appeal allowed, financial agreement set aside and retrial of the parties’ property settlement claims ordered |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
Australian Securities & Investments Commission and Rich & Anor (2003) FLC 93-171
Brooks v Burns Philip Trustee Co Ltd (1969) ALR 321
Burgoyne and Burgoyne (1978) FLC 90-467; (1978) 4 Fam LR 204
Candlish and Pratt (1980) FLC 90-819; (1980) 6 Fam LR 75
Davies v Davies (1919) 26 CLR 348
Hyman v Hyman [1929] AC 601
J and J [2006] FamCA 442
Naughton and Naughton (1983) FLC 91-327; (1983) 9 Fam LR 47
Wright and Wright (1977) FLC 90-221; (1977) 3 Fam LR 11,150
| APPELLANT: | Mr Black |
| RESPONDENT: | Ms Black |
| FILE NUMBER: | HBF 1755 of 2004 |
| APPEAL NUMBER: | SA 65 of 2006 |
| DATE DELIVERED: | 24 January 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Faulks DCJ, Kay and Penny JJ |
| HEARING DATE: | 4 June 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 September 2006 |
| LOWER COURT MNC: | [2006] FamCA 972 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Williams |
| SOLICITOR FOR THE APPELLANT: | Cann Legal |
| COUNSEL FOR THE RESPONDENT: | Mr McVeity |
| SOLICITOR FOR THE RESPONDENT: | McVeity and Associates |
Orders
The husband’s appeal be allowed.
Orders 1, 2 and 3 made by the Honourable Justice Benjamin on 15 September 2006 be set aside
The financial agreement entered into between the parties on 3 September 2003 be set aside.
The parties’ respective claims for alteration of property interests be remitted for retrial.
The Court grants to the appellant a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981…
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- Black & Black [2008] FamCAFC 7
- Case
- [2008] FamCAFC 7
- Decision Date
CaseChat Overview and Summary
The court held that the financial agreement did not meet the requirements of section 90G(1)(b) because it failed to include a statement that the parties had received independent legal advice on all matters set out in the then section 90G(1)(b). The court emphasised that a strict interpretive approach and strict compliance requirements should be applied where legislation ousts the court’s jurisdiction to make adjustive orders under section 79. Consequently, the appeal was allowed, the financial agreement was set aside, and the parties' claims for alteration of property interests were remitted for retrial. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981.
Orders
Orders of the court
1.
The husband’s appeal be allowed.
2.
Orders 1, 2 and 3 made by the Honourable Justice Benjamin on 15 September 2006 be set aside
3.
The financial agreement entered into between the parties on 3 September 2003 be set aside.
4.
The parties’ respective claims for alteration of property interests be remitted for retrial.
5.
The Court grants to the appellant a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
6.
The Court grants to the respondent a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
7.
That the Court grants to the respondent/husband a further certificate pursuant to the provisions of s.8 of the said Act being a certificate stating that in the opinion of the Court it would be appropriate for the Attorney General to authorise a payment under that Act to the parties in respect of such part as the Attorney General considers appropriate of any costs incurred by the parties in relation to the new trial granted by these orders.
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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