Delizio and Delizio

[2010] FamCA 440

FAMILY COURT OF AUSTRALIA

DELIZIO & DELIZIO [2010] FamCA 440

FAMILY LAW – PROPERTY – Interim

APPLICANT: Ms Delizio

RESPONDENT: Mr Delizio

FILE NUMBER: SYC 666 of 2010

DATE DELIVERED: 4 May 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Dessau J

HEARING DATE: 4 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Batey

SOLICITOR FOR THE APPLICANT: Etienne Lawyers

COUNSEL FOR THE RESPONDENT: Mr R. Lethbridge

SOLICITOR FOR THE RESPONDENT: York Family Law

Orders

1. That all existing applications shall be adjourned to the Conciliation Conference to be held on 22 June 2010 at 9.30am.

2. That all questions of costs of this day shall be reserved.

3. That a transcript of my Reasons given this day shall be prepared, placed on the Court file and made available to each party.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 666 of 2010

MS DELIZIO

Applicant

And

MR DELIZIO

Respondent

REASONS FOR JUDGMENT

1. Mr and Mrs Delizio started to live together in September 2005, married in June 2006, and separated three years later, in June 2009.  The husband is aged 57.  The wife is aged 45.  They had no children together, although both have children from previous relationships. 

2. The husband is, on any view, a very successful businessman.  There is no dispute about that.  Before the parties married, they entered a Binding Financial Agreement dated 6 June 2006, and then another two in the course of the marriage, dated 16 January 2009 and 25 February 2009 respectively, with another on 15 July 2009, after separation.  For ease, I have just referred to them as Binding Financial Agreements but, of course, whether or not they are is very much at the heart of the dispute.

3. The wife filed an initiating application on 4 February 2010, now superseded by a second amended initiating application filed on 29 April 2010. She has sought a declaration that none of the purported agreements are binding financial agreements for the purpose of s90G of the Act or, in the alternative, that the agreements be set aside for fraud being voidable or unenforceable, unconscionable, and as they were entered under duress by the wife, and/or as a result of the husband’s undue influence. In that application, she has also sought a property settlement of $5 million, weekly spousal maintenance of $4268 or, in the alternative, another lump sum of $5 million.

4. The husband’s response, filed 28 April 2010, sought further particulars of the wife’s claim, but also that the claim be dismissed.  That response related to an earlier amended application, not the current one which was only filed the day after the husband’s response. 

5. Today I am dealing with an application in a case filed by the wife on 25 March 2010.  It is in the following terms:     

   1.That a declaration be made that none of the purported Financial Agreement/s dated 6 June 2006, 16 January 2009, 25 February 2009 and … July 2009 comprise Binding Financial Agreements as to spouse maintenance for the purposes of:

   1.1S.90G of the Family Law Act 1975;

   1.2S.90G of the Family Law Act 1975.

   2.That pursuant to s.74 of the Family Law Act 1975, the husband pay to the wife or as she may direct in writing form time to time the sum of $4,268 per week by way of interim spouse maintenance.

   3.That the husband pays the wife’s costs of and incidental to this Application on an indemnity basis.

6. The application is accompanied by a lengthy affidavit filed the same day and an affidavit of the psychiatrist, Dr Y, a general practitioner, Dr B, and a psychologist, KZ, broadly in relation to the wife’s health, mental state, capacity to enter the last agreement, and her capacity for employment, or matters ranging across those topics. 

7. The husband has today filed a response and an affidavit. In his response he still seeks particulars as to the s 90G and s 90E aspects of the wife’s application and, again, he seeks that the wife’s application be dismissed and he seeks to be excused from filing a financial statement until further order. He complains that he has been seeking particulars of the wife’s claim but they have not been forthcoming and there is certainly a degree of support for his account, at least from the correspondence attached to his affidavit, although I note, of course, that the wife’s legal representatives have a different perspective on that. Unfortunately, it is only today that either party has filed any outline of case.

8. Unfortunately too there is, what I have referred to in the course of discussion this morning, an overlay of procedural orders relevant to an upcoming conciliation conference on 22 June 2010.  Those procedural orders run contrary to the timeframe of this application.  For example, the wife’s solicitors have 28 days on the Registrar’s orders to respond to the husband’s solicitor’s request for further particulars.  That request was made on 16 April.  Accordingly, the 28 day response period has not expired, and the wife’s solicitor has not responded. 

9. For the wife, it is submitted that whether or not the last relevant Binding Financial Agreement, that of July 2009, complies with section 90E of the Act is quite clear.  It does not, and the argument is that there is simply no need for further particulars on that topic.  It does not comply because it does not set out the amount specific to maintenance as opposed to property.  It is therefore void.  The wife has an urgent need for maintenance and I should deal with that. 

10. For the husband, it is submitted that s 90KA of the Act applies, and the agreement is capable of rectification.  Evidence is required on the question of rectification.  The parties are not prepared for that evidence today.  It was submitted that the case should not be split.  If it remains alive after the Conciliation Conference, the standing of the Binding Financial Agreement should be considered in its entirety.

11. Mr Batey, for the wife, has suggested that s 90KA does not apply to that part of the agreement affected by s 90E of the Act.  He does concede however that if rectification is held to be a valid consideration, evidence would be required. 

12. I do not propose determining any part of the application today.  The parties are still trading the requisite documents and details for a Conciliation Conference soon to be held.  It would undermine that conciliatory process to determine only a small portion of this complex case when there is simply no sound reason to do so.  I say that from two perspectives.  First, I do not see it as helpful to bind another judge as to one aspect of the agreements that may, in due course, be the subject of scrutiny from various broader perspectives.  On any view, I cannot, and will not be the judge who continues in this case.  Secondly, it is simply, in my view, not urgent.

13. The wife is either receiving or has received in advance the sum equivalent to $8,000 per month and has recently received other reasonably substantial lump sums.  In due course, they will either represent the entirety of what she receives or, if she is entitled to a property settlement or maintenance orders, the trial Judge can characterise payments received in the meantime.  But the fact of those payments robs the case of any urgency at this point.   

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  4 May 2010