Chetri & Thapa - [2024] FedCFamC2F 1611

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chetri & Thapa [2024] FedCFamC2F 1611

File number(s): SYC 4296 of 2023

Judgment of: JUDGE MURDOCH

Date of judgment: 14 November 2024

Catchwords: FAMILY LAW – PROPERTY – Financial Agreement – where the wife seeks a declaration that a s90C Financial Agreement is not binding – Where the husband opposes such relief –Where it is found that the wife did not receive the advice prescribed by s90G(1)(b) of the Family Law Act1975 (Cth) ––Where the husband has not established that it would be unjust and inequitable if the Financial Agreement were not binding - Declaration made that the Financial Agreement is not binding - Where submissions are sought as to why the husband’s conceded conduct in forging the signature of both the wife and a retired barrister on a prior Application for Divorce of the parties should not be referred to the Department of Public Prosecutions for investigation and possible prosecution.

Legislation: Family Law Act 1975 (Cth) ss 44(3), 71A, 79, 90C, 90G, 90K

Cases cited:
Abrum & Abrum [2013] FamCA 897

Dragomirov & Dragomirov [2024] FedCFamC1A 187

Hoult v Hoult [2011] FamCA 1023

Hoult & Hoult (2013) FLC 93-546

Logan & Logan [2013] FamCAFC 151

Parker & Parker (2012) FLC 93-499

Wallace & Stelzer and Anor [2013] FamCAFC 199

Waterford v Commonwealth [1987] HCA 25

Division: Division 2 Family Law

Number of paragraphs: 110

Date of last submissions: 22 October 2024

Date of hearing: 21-22 October 2024

Place: Sydney

Counsel for the Applicant: Mr Brennan

Solicitor for the Applicant: B Law Firm

Counsel for the Respondent: Mr Necovski

Solicitor for the Respondent: Juris League Consultancy Pty Ltd
ORDERS

SYC 4296 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CHETRI

Applicant

AND:
MR THAPA

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

14 NOVEMBER 2024

THE COURT ORDERS THAT:
1.IT IS DECLARED THAT the Financial Agreement executed by the parties and dated early 2017 is not binding within the meaning of section 90G of the Family Law Act1975 (Cth).
2.Any party wishing to make an application for the costs of or incidental to the separate issues hearing are to file and serve by no later than 4:00 pm on 28 November 2024 an Application in a Proceeding specifying the orders sought as to costs and any affidavit in support thereof of no more than five pages.
3.Any Response and Affidavit of no more than five pages above is to be filed and served by no later than 4:00 pm on 12 December 2024.
4.Any such application for costs will be heard and determined on the papers in Chambers unless a party seeks a particular order that it be listed for oral hearing in their Application or Response.
5.The wife file and serve an Amending Initiating Application particularising the relief she seeks on a final basis in competent form by no later than 4:00 pm on 28 November 2024.
6.The Husband file…

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 Chetri & Thapa

Details

AGLC: Chetri & Thapa [2024] FedCFamC2F 1611
Case: [2024] FedCFamC2F 1611
Decision Date: 14 November 2024

CaseChat Overview and Summary

The matter between Ms Chetri and Mr Thapa arose in the Federal Circuit and Family Court of Australia, Division 2, and involved a dispute over a Financial Agreement made between the parties. Ms Chetri sought a declaration that the Financial Agreement executed by the parties in early 2017 was not binding. Mr Thapa opposed this declaration, arguing that the agreement was binding and should be upheld. The court was required to determine whether the Financial Agreement was binding and, if not, whether it would be unjust or inequitable to enforce it.

The court considered whether Ms Chetri received the independent legal advice required by section 90G(1)(b) of the Family Law Act 1975 (Cth). The evidence showed that she did not receive such advice, leading the court to conclude that the agreement was not binding. The court further examined whether it would be unjust or inequitable to enforce the agreement, a matter Mr Thapa had not successfully established. Consequently, the court declared the Financial Agreement not binding. Additionally, the court addressed the issue of Mr Thapa's admitted conduct of forging signatures on a prior Application for Divorce, inviting submissions as to why this conduct should not be referred to the Department of Public Prosecutions.

The court ordered that the Financial Agreement executed by the parties was not binding, as per section 90G of the Family Law Act 1975 (Cth). The court also set timelines for various procedural steps, including the filing of costs applications, responses, and an Amending Initiating Application. The substantive proceedings were listed for further directions. Furthermore, Mr Thapa was required to file any submissions as to why his conduct should not be referred to the Director of Public Prosecutions (New South Wales). These orders provided a clear path for the continuation of the case, ensuring that all procedural matters were addressed systematically.

Orders

Orders of the court

SYC 4296 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CHETRI

Applicant

AND:

MR THAPA

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

14 NOVEMBER 2024

THE COURT ORDERS THAT:

1. IT IS DECLARED THAT the Financial Agreement executed by the parties and dated early 2017 is not binding within the meaning of section 90G of the Family Law Act 1975 (Cth).

2. Any party wishing to make an application for the costs of or incidental to the separate issues hearing are to file and serve by no later than 4:00 pm on 28 November 2024 an Application in a Proceeding specifying the orders sought as to costs and any affidavit in support thereof of no more than five pages.

3. Any Response and Affidavit of no more than five pages above is to be filed and served by no later than 4:00 pm on 12 December 2024.

4. Any such application for costs will be heard and determined on the papers in Chambers unless a party seeks a particular order that it be listed for oral hearing in their Application or Response.

5. The wife file and serve an Amending Initiating Application particularising the relief she seeks on a final basis in competent form by no later than 4:00 pm on 28 November 2024.

6. The Husband file and serve any Amended Response by no later than 4:00 pm on 14 December 2024.

7. By no later than 4:00 pm on 28 November 2024 the husband is to file any written submissions he wishes to make of no more than three pages as to why his conduct should not be referred to the Director of Public Prosecutions (New South Wales).

8. The substantive proceedings are listed for further Directions before a Judicial Registrar at 11:30 am on 21 January 2025.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

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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File number(s):	SYC 4296 of 2023
Judgment of:	JUDGE MURDOCH
Date of judgment:	14 November 2024
Catchwords:	FAMILY LAW – PROPERTY – Financial Agreement – where the wife seeks a declaration that a s90C Financial Agreement is not binding – Where the husband opposes such relief –Where it is found that the wife did not receive the advice prescribed by s90G(1)(b) of the Family Law Act1975 (Cth) ––Where the husband has not established that it would be unjust and inequitable if the Financial Agreement were not binding - Declaration made that the Financial Agreement is not binding - Where submissions are sought as to why the husband’s conceded conduct in forging the signature of both the wife and a retired barrister on a prior Application for Divorce of the parties should not be referred to the Department of Public Prosecutions for investigation and possible prosecution.
Legislation:	Family Law Act 1975 (Cth) ss 44(3), 71A, 79, 90C, 90G, 90K
Cases cited:	Abrum & Abrum [2013] FamCA 897 Dragomirov & Dragomirov [2024] FedCFamC1A 187 Hoult v Hoult [2011] FamCA 1023 Hoult & Hoult (2013) FLC 93-546 Logan & Logan [2013] FamCAFC 151 Parker & Parker (2012) FLC 93-499 Wallace & Stelzer and Anor [2013] FamCAFC 199 Waterford v Commonwealth [1987] HCA 25
Division:	Division 2 Family Law
Number of paragraphs:	110
Date of last submissions:	22 October 2024
Date of hearing:	21-22 October 2024
Place:	Sydney
Counsel for the Applicant:	Mr Brennan
Solicitor for the Applicant:	B Law Firm
Counsel for the Respondent:	Mr Necovski
Solicitor for the Respondent:	Juris League Consultancy Pty Ltd

SYC 4296 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CHETRI Applicant
AND:	MR THAPA Respondent

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	14 NOVEMBER 2024