Garvey & Jess

[2016] FamCA 445

FAMILY COURT OF AUSTRALIA

GARVEY & JESS [2016] FamCA 445

FAMILY LAW – FINANCIAL AGREEMENT – Whether financial agreement void for uncertainty – Whether parties entered into an “agreement to agree” – Where the agreement provides for the division of future, joint assets – Where the agreement requires joint assets be divided equally – Application dismissed.

Family Law Act 1975 (Cth) ss 71A, 79, 90B, 90G, 90K, 90KA

Fevia & Carmel Fevia (2009) FLC 93-411
Interlink Australia Pty Ltd v Gwedoline Elva Lowe [2015] QCA 211.
Kostres & Kostres (2009) FLC 93-420
Ruane Backman-Ruane and Anor [2009] FamCA 1101
Tramways Advertising Pty Ltd v Luna Park (1938) 38 SR (NSW) 632
Weiss, MM v Barker Gosling (1993) FLC 92-399

APPLICANT: Mr Garvey

RESPONDENT: Ms Jess

FILE NUMBER: BRC 2175 of 2016

DATE DELIVERED: 7 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 27 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney SC

SOLICITOR FOR THE APPLICANT: Barry.Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Dr Brasch QC with Ms Minnery

SOLICITOR FOR THE RESPONDENT: Phillips Family Law

Orders

1. That the wife’s Response to an Application in a Case filed 12 April 2016 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garvey & Jess has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2175 of 2016

Mr Garvey

Applicant

And

Ms Jess

Respondent

REASONS FOR JUDGMENT

1. The parties to this dispute are Mr Garvey (“the husband”) and Ms Jess (“the wife”). The husband is ultimately seeking to enforce the terms of a deed signed by the parties on 3 August 2006 (“the deed”). He contends that the deed is a financial agreement that is binding within the meaning of the Family Law Act 1975 (as amended) (Cth) (“the Act”). The only order sought by the husband at this hearing is for the wife’s Response to his Application in a Case to be dismissed.

2. The wife contends that the deed is void for uncertainty and that, accordingly, the husband’s Application for enforcement should be dismissed.

Background

1. The husband and wife married in 2006 and separated on 15 June 2015 according to the husband or 28 April 2015 according to the wife. The deed itself provides a mechanism for giving notice of a separation. They have two children aged 9 and 6. The children live with their parents in a shared care arrangement.

2. On 3 August 2006 the parties entered into a deed signed by the wife on 27 July 2006 and by the husband on 3 August 2006. Each of the parties was legally represented at the time. The deed purports to be a financial agreement pursuant to s 90B of the Act.

3. The deed relevantly provides:

   Introduction

   3. The parties intend to marry on the … 2006 and wish to enter into a financial agreement before marriage to…