FAMILY COURT OF AUSTRALIA
| FEVIA & CARMEL-FEVIA | [2009] FamCA 816 |
| FAMILY LAW – PROPERTY – FINANCIAL AGREEMENTS –Financial agreement in contemplation of marriage –Significant concerns surrounding formalisation of agreement – Question of whether there was an agreement - The husband’s signed document materially different to that signed by the wife –Wife not provided with copy of agreement as signed by husband until proceedings commenced – Absence of valid agreement means no issue of it being “binding” financial agreement are not raised FAMILY LAW – FINANCIAL AGREEMENTS – INTERPRETATION OF SECTION 90G – Distinction between roles of S 90G and S 90B – What constitutes a “copy” - “Within a reasonable time” implied into the requirement to provide original and copy “after the agreement is made” FAMILY LAW – FINANCIAL AGREEMENTS – ROLE OF SECTION 90KA WITHIN PART VIIIA – Contractual and equitable principles - Role in financial agreements –S 90G requirements different to contractual requirements – S 90KA no role to play with respect to S 90G requirements FAMILY LAW – EQUITY AND S 90G –Estoppel can arise in relation to the creation of contractual agreement or financial agreement under S 90B – Estoppel has no application in respect of non-compliance with S 90G |
| Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB Evidence Act 1995 (Cth) ss 47, 48 Family Law Act 1975 (Cth) ss 4, 71A, 90B, 90C, 90D, 90G, 90KA, 90K Matrimonial Causes Act 1959 (Cth) s 87(1)(k) |
| Armcor Coatings Marketing Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259 Australian Securities and Investment Commission and Rich (2003) FLC 93-171 Barilla v James (1964) 81 WN (Pt1) NSW 457 Black and Black (2008) FLC 93-357 Collin v Holden (1989) VR 510 Commonwealth v Verwayen (1990) 170 CLR 394 Farrow Mortgage Services Pty Ltd v Slade and Nelson (1996) 38 NSWLR 636 Harrison v Battye (1975) 1 WLR 58 Jackel v Sita Queensland [2000] QDC 41 Kok Hoong v Leong Cheong Kweng Mines Limited [1964] AC 993 McBride v Sandland (1918) 25 CLR 69 Millington and Millington [2007] FamCA 687 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Skurray [1967] 2 NSWR 611 Re Pigot (1614) 77 ER 1177 Shah v Shah [2002] QB 35 Shaw v Shaw (1965) 113 CLR 545 Sindel v Georgiou (1984) 154 CLR 661 Solle v Butcher [1950] 1 KB 671 Steadman v Steadman (1976) AC 536 Trade Practices Commission v Milreis Pty Ltd (1977) 29 FLR 144 Tudor Developments Pty Ltd v Makeig [2008] NSWCA 263 Walton Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238 Woodcock and Woodcock (1997) FLC 92-739 Woodland and Todd (2005) 33 FamLR 177 Zaccardi v Caunt [2008] NSWCA 202 |
| APPLICANT: | Mr Fevia |
| RESPONDENT: | Ms Carmel-Fevia |
| FILE NUMBER: | MLC | 4389 | of | 2008 |
| DATE DELIVERED: | 3 September 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 10 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr… |
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- AGLC
- Fevia & Carmel-Fevia [2009] FamCA 816
- Case
- [2009] FamCA 816
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether a valid financial agreement existed between the parties within the meaning of the *Family Law Act 1975* (Cth). This involved considering the requirements for a financial agreement under s 90B and the implications of non-compliance with s 90G, including the distinction between the roles of these sections and the interpretation of what constitutes a "copy" and the timeframe for its provision. The court also examined the potential application of contractual and equitable principles, including estoppel, in relation to financial agreements.
Murphy J reasoned that the fundamental requirements of s 90G of the Act had not been met, particularly concerning the provision of a copy of the agreement as signed by both parties. The court found that the absence of a valid agreement meant that the question of it being a "binding" financial agreement did not arise. Consequently, the court declared that no financial agreement existed between the parties within the meaning of the Act, nor was there any binding financial agreement. The wife's application for property settlement under s 79 was listed for further directions before a Registrar.
Orders
Orders of the court
1.
It be declared that:
(a) there is no “financial agreement” in existence between the Applicant and the Respondent within the meaning of the Family Law Act 1975 (Cth); and
(b) there is no financial agreement between the Applicant and the Respondent which is “binding” within the meaning of the Act.
2.
The application of the wife for settlement of property pursuant to s 79 of the Act be listed before a Registrar at a date and a time to be advised for the making of further directions for the progress of that application.
3.
In the event that either party seeks an order for costs in relation to these proceedings, they shall file, within 21 days of the date of these Orders, written submissions in support of any such order and, at the outset of those submissions, shall indicate whether they consent to the determination of any such application in chambers or require to supplement those submissions at an oral hearing.
4.
In the event that any application for costs is made by either party pursuant to paragraph 3 of these Orders, the other party shall, if seeking to oppose any such order, file within 21 days of the service of the submissions contemplated in that paragraph, written submissions responding to such application and shall, if not earlier having made application themselves pursuant to paragraph 3, indicate at the outset of those submissions whether they consent to the determination of any such application in chambers or require to supplement those submissions at an oral hearing. .
5.
In the event that responding submissions are filed in accordance with paragraph 4 of these Orders, the other party shall, within 7 days of the service of such responding submissions, file any submissions in reply thereto.
6.
For the purposes of paragraphs, 3, 4 and 5 of these Orders, the parties are at liberty to file any such submissions by forwarding them by e-mail to the Brisbane registry provided that any such e-mail and all attachments are sent contemporaneously to the solicitors for other party.
7.
In default of either party filing the submissions contemplated by paragraph 3 of these Orders, each party shall bear their own costs.
8.
In the event that one or both parties in making, or responding to, an application for costs, require to supplement their submissions orally, the issue of costs be listed for hearing before Murphy J at a time and date to be advised and, in the event that Murphy J is not sitting in Melbourne within a reasonable time of such request, any such hearing shall occur by videolink.
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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