FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DREW & VICKERY | [2010] FMCAfam 1307 |
| FAMILY LAW – De facto relationship – Periods of separation – jurisdiction of court – signing of ‘termination agreement’ under State legislation – setting aside of agreement by conduct – duress – determination of threshold issue – accrued jurisdiction – estoppel by conduct/convention – declaration of whether there is a child of the de facto relationship. |
| Family Law Act 1975 (Cth), ss.4(1), 4AA, 31(1)(aa), 39A(1) & (2), 39B(1) & (2), 39C, 39D, 39F, 40A, 79, 79A, 90RA, 90RC, 90RD(2)(a), 90SB(a) 90SB(b), 90SL(1), 90SM(1), 90SM(3), 90SM(4), 90SN, 90UM(1)(e), 90UM(1)(f), 90UM(1)(h) Contracts Review Act 1980 (NSW), ss.7, 9 |
| Aguilar & Aguilar [2009] FamCA 1343 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Commissioner of Taxation v Anstis (2010) HCA 40 (11th November 2010) Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Davison v Queensland (2006) 226 CLR 234 DMW v CGW (1982) 151 CLR 491 Fencott v Muller (1983) 152 CLR 570 George v Hibberson (1987) DFC ¶95-054 Grundt v. Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Hamblin v Dahl (2010) 239 FLR 111 Howland v Ellis (2001) 28 Fam LR 656 Jones v Grech (2001) 27 Fam LR 711 Le May v Clark (2006) DFC ¶95-327 Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 Milevsky v Carson (2005) DFC ¶95-314 Nilant v Macchia (2000) 104 FCR 238 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Roy v Sturgeon (1986) 11 NSWLR 454 In the Marriage of Sommerville (2001) 27 Fam LR 233 Valceski v Valceski (2007) 36 Fam LR 620 Warby v Warby (2001) 28 Fam LR 443 Watson v Holmes (2009) 39 Fam LR 571 Yunghanns v Yunghanns (1999) 24 Fam LR 400 A. Barlow, S. Duncan, G. James & A. Park, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century, (Oxford & Portland: Hart Publishing, 2005) M.A. Glendon, The Transformation of Family Law: State, Law and Family in the United States and Western Europe, (Chicago & London: University of Chicago Press, 1989) K.R. Handley, Estoppel by Conduct and Election, (Sydney: Thomson – Sweet & Maxwell, 2006) Dr D Kovacs, “A federal law of de facto property rights: The dream and the reality,” (2009) 23 Australian Journal of Family Law 104-121 G. Lind, Common Law Marriage: A Legal Institution for Cohabitation, (Oxford: Oxford University Press, 2008) D.C. Pearce & R.S. Geddes, Statutory Interpretation in Australia, (Sixth Edition) (Sydney: LexisNexis – Butterworths, 2006) Hon Justice Watts, “The de facto relationships legislation,” (2009) 23 Australian Journal of Family Law 122-143 |
| Applicant: | MS DREW |
| Respondent: | MR VICKERY |
| File Number: | CAC 132 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 27 August 2010 |
| Date of Last Submission: | 27… |
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- AGLC
- DREW & VICKERY [2010] FMCAfam 1307
- Case
- [2010] FMCAfam 1307
- Decision Date
CaseChat Overview and Summary
Drew and Vickery were the parties in a legal dispute that reached the Family Court of Australia. The central issue was the validity and effect of a termination agreement entered into by the parties during their separation. The court had to determine whether the resumption of cohabitation by the parties negated the agreement's effect. This decision hinged on whether the parties' conduct upon resuming their cohabitation demonstrated an assumption that the termination agreement was no longer in effect.
The court examined the principles of estoppel by convention, particularly in light of the High Court's decision in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd. The court assessed whether the parties' conduct indicated an assumed state of facts that both would be estopped from denying. Given the detailed comments by Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd, the court considered whether the parties' resumption of cohabitation constituted a change in their assumed state of affairs that rendered the termination agreement ineffective. The court also noted that belief in the correctness of the assumed facts was not necessary for estoppel by convention to apply.
In reaching its decision, the court held that the resumption of cohabitation by the parties indicated a mutual assumption that the termination agreement was no longer applicable. Consequently, the court ruled that the termination agreement was effectively negated by the parties' conduct upon resuming their cohabitation. The court directed the parties to provide a draft of the orders to be made within 14 days and adjourned the matter for further directions on 9th February 2011 in Wagga Wagga.
The court examined the principles of estoppel by convention, particularly in light of the High Court's decision in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd. The court assessed whether the parties' conduct indicated an assumed state of facts that both would be estopped from denying. Given the detailed comments by Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd, the court considered whether the parties' resumption of cohabitation constituted a change in their assumed state of affairs that rendered the termination agreement ineffective. The court also noted that belief in the correctness of the assumed facts was not necessary for estoppel by convention to apply.
In reaching its decision, the court held that the resumption of cohabitation by the parties indicated a mutual assumption that the termination agreement was no longer applicable. Consequently, the court ruled that the termination agreement was effectively negated by the parties' conduct upon resuming their cohabitation. The court directed the parties to provide a draft of the orders to be made within 14 days and adjourned the matter for further directions on 9th February 2011 in Wagga Wagga.
Orders
Orders of the court
1.
Within 14 days, the parties are to provide a draft of the Orders to be made by the Court which reflect these reasons and deal with the future conduct of the matter.
2.
The matter be adjourned for further directions on 9th February 2011 in Wagga Wagga.
Background
Background to the litigation
For example, in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd, the High Court said:[44]Estoppel by convention is a form of estoppel founded not on a representation of fact made by a representor and acted on by a representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying. (Emphasis added.)[44] (1986) 160 CLR 226 at p.244 [22] (Gibbs CJ, Mason, Wilson, Brennan & Dawson JJ). See also the detailed discussion in K.R. Handley, Estoppel by Conduct and Election, (Sydney: Thomson – Sweet & Maxwell, 2006). In Con-Stan Industries, the High Court relied on, among other authorities, the detailed comments and observations of Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd.[45] In that case, his Honour said:[46]The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. This is, of course, a very general statement. But it is the basis of the rules governing estoppel. Those rules work out the more precise grounds upon which the law holds a party disentitled to depart from an assumption in the assertion of rights against another. One condition appears always to be indispensable. That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. ... This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. (Emphasis added.)[45] (1937) 59 CLR 641. See especially pp.674-677.[46] 59 CLR at p.674. Later in the same judgment, Dixon J noted that “... belief in the correctness of the facts or state of affairs assumed is not always necessary. Parties may adopt as the conventional basis of a transaction between them an assumption which they know to be contrary to the actual state of affairs.”[47][47] 59 CLR at p.676. In this case, and having particular regard to the comments of Dixon J just noted, in my view, it is extremely difficult to see that, upon the resumption of their cohabitation, the parties did not assume that the termination agreement no longer had any effect. Stated positively, upon the resumption of their cohabitation, the parties must be taken to have assumed that in the light of their ‘current state of affairs’ the earlier termination agreement no longer had any application to their resumed relationship.[48][48] In this regard, see also the comments of Nicholson CJ in In the Marriage of Sommerville (2001) 27 Fam LR 233 at pp.250-253 [113] – [128] and the cases there cited, cf. Aguilar & Aguilar [2009] FamCA 1343 (Stevenson J).
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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