Clemenceau and Clemenceau

[2010] FamCA 512

FAMILY COURT OF AUSTRALIA

CLEMENCEAU & CLEMENCEAU [2010] FamCA 512

FAMILY LAW – PROPERTY – Financial agreement

Family Law Act 1975 (Cth)

APPLICANT: Ms Clemenceau

RESPONDENT: Mr Clemenceau

FILE NUMBER: MLC 11332 of 2008

DATE DELIVERED: 10 May 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Cronin

HEARING DATE: 10 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wood

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

THE RESPONDENT: In person

Orders

1. That pursuant to s 90G of the Family Law Act 1975 (Cth) (“the Act”), the Court declares that the financial agreement between the parties is valid and binding.

2. That by virtue of the power in s 90KA(c) and pursuant to s 106A of the Act in the event of that the husband refuses or neglects to sign the release pursuant to paragraph 4 of the financial agreement marked Exhibit A, the Registrar of the Melbourne Registry of the Court sign the same in the name of the husband.

3. That for the purposes of paragraph 2 of these orders, it shall be sufficient proof of non-compliance of the husband if the wife’s solicitors swear and file, an affidavit deposing to the fact that the release was forwarded to the husband by ordinary pre-paid post to …, T, and that the same has not been returned signed by the husband within seven days.

4. That the for the purposes of paragraph 9 of the financial agreement and paragraph 5 of the child support agreement, the husband forthwith sign all documents and do all things necessary to open a specific banking account in his name and:

   i.      provide to the wife access to a debit card facility on that account;

   ii.     maintain the wife’s access to such facility; and

   iii.     maintain the minimum of $5000 within such facility at all times.

5. That the husband pay the wife’s costs of this application fixed at $6840 to the solicitors for the wife by no later than 4.00pm on Thursday 10 June 2010.

6. That all extant proceedings be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11332 of 2008

MS CLEMENCEAU

Applicant

And

MR CLEMENCEAU

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife which was filed back on 5 February 2010. It is in two parts. The first is for a declaration that a financial agreement made between Mr and Mrs Clemenceau was binding pursuant to s 90G of the Family Law Act (1975) Cth (“the Act”). The second part of the agreement relates to the enforcement of not only the financial agreement but also an accompanying child support agreement. After much discussion today, a consensus has been arrived at which will be reflected in the transcript if it ever is obtained in relation to the various matters that have arisen out of the second part of that application. There is no dispute that for the purposes of s 90G of the Act that this agreement is a financial agreement and I so declare.

2. Section 90KA of the Act provides that wherever a financial agreement or termination agreement is in question, its validity, enforceability or effectiveness is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability or effectiveness of contracts or purported contracts. Section 90KA also provides that a court can enforce parts of the agreement as if they were orders of the court. What I have done today is to walk the husband, who is unrepresented, through the various disputed issues and we appear now to have consensus about what the agreement was intended to mean or what it will mean from now on.

3. For that reason, what I have done is marked as an exhibit, the agreement which the parties signed in 2009.  Unfortunately, for reasons which remain obscure, the agreement which is marked as an exhibit was never dated.  That seems to have caused a number of problems.  I do not propose to date the agreement because I think that would be inappropriate.   However, the agreement itself has a number of variations upon it which I will make sure the parties note before they walk away today, in addition to which I will make a number of orders. 

4. First, I propose to give the registrar a power under s 106A of the Act to sign documents in relation to a release on the basis of an affidavit prepared by the wife’s lawyers in the event that the husband fails to comply with any of his obligations under the agreement.

5. I have also made an order today in relation to the enforcement of the agreement concerning how the expenses are to be paid and the husband has agreed to set up a bank account in his name and provide to the wife a debit card facility so that the expenses can be paid.  At all times, that account will have a minimum of $5000 in it.  The wife, on the other hand, under the agreement, has to provide to the husband a copy of all of the invoices associated with the monies that she draws from the debit facility. 

6. The final matter related to the question of costs. The wife sought the sum of $7300, bearing in mind that on 23 March this year, I reserved her costs of $2500 thrown away that day. On that occasion, Mr Wood of counsel appeared for the wife and he was instructed by a solicitor who today is not present. I have explained to the husband the provisions of s 117 of the Act which provide that each party shall bear their own costs unless there are circumstances that justify an order being made. This is one of those cases where the court is justified because of the very fact that it has an application for enforcement before it.

7. There was some argument about the quantum of the arrears as at the time that the matter came before the court and, for that matter, even when the application was issued but there can be no dispute that there were some arrears. Those arrears may have arisen from some misunderstanding or dispute, but the reality is the wife had to come to court to get it sorted out. I have canvassed with all parties the costs payable by the husband under the schedule to the Family Law Rules 2004 and, doing the best I can, I fixed the sum in $6480, which the husband has agreed he will pay by 4 o’clock on Thursday, 10 June. In making an order for costs, I have taken into account all of the matters set out in s 117(2A) of the Act and I am satisfied in the circumstances that it is a just order to make.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  25 May 2010