Gonsalves & Gonsalves (No 3) - [2023] FedCFamC1F 1069

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gonsalves & Gonsalves (No 3) [2023] FedCFamC1F 1069

File number(s): SYC 1702 of 2019

Judgment of: CHRISTIE J

Date of judgment: 13 December 2023

Catchwords:
FAMILY LAW – APPLICATION FOR ISSUE OF WARRANT – Non-compliance with subpoena – Where a subpoena had been issued to a third party to attend court to give evidence – Where the third party swore an affidavit shortly before the hearing indicating she was unwell and unable to give evidence – Where the issue of a warrant would cause undue delay – Application dismissed.

FAMILY LAW – EVIDENCE – Application to rely on affidavit of a deponent unavailable for cross-examination – Where allowing the moving party to rely on the affidavit would create unfair prejudice to the objecting party – Where the probative value of the evidence is substantially outweighed by the unfair prejudice occasioned to the objecting party – Application dismissed.

FAMILY LAW – PROPERTY – Financial Agreements – Where the parties entered into a financial agreement pursuant to s 90D of the Family Law Act 1975 (Cth) – Where both parties asserted the agreement was valid and binding – Where the applicant seeks enforcement of a part of the agreement which would require the respondent to split a superannuation interest in his name – Where the agreement did not contain any indication of the value of parties’ respective superannuation entitlements – Where there is no evidence to indicate that the parties were aware of the value of their respective superannuation entitlements – Rectification – Where it is not established that there was a common intention between the parties in sufficiently clear terms – Where rectification is not available – Application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 135 and s 165

Family Law Act 1975 (Cth) Pt VIIIA, ss 79, 90D, 90G

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.41

Cases cited:
Birdwood & Gravino (2023) FLC 94-149

Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101

Graham & Squibb (2019) FLC 93-892

Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336

Naparus v Frankham [2020] FamCAFC 32

Senior & Anderson (2011) FLC 93-470

Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85

Division: Division 1 First Instance

Number of paragraphs: 99

Date of hearing: 28 November 2023

Place: Sydney

Counsel for the Applicant: Ms Clarke

Solicitor for the Applicant: J S Pinto & Co

Counsel for the Respondent: Ms Ingenito

Solicitor for the Respondent: Bazaliza Lawyers
ORDERS

SYC 1702 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GONSALVES

Applicant

AND:
MR GONSALVES

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

23 DECEMBER 2023

THE COURT ORDERS THAT:
1.The Further Amended Application of the wife filed 7 November 2023 is dismissed.

Note: The form of the order is subject to the entry in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1F 1069
Decision Date: 13 December 2023

CaseChat Overview and Summary

In the case of Gonsalves & Gonsalves, the applicant, Ms Gonsalves, sought various reliefs from the Federal Circuit and Family Court of Australia, including the enforcement of a financial agreement entered into with her former husband, Mr Gonsalves. The couple had been married since 1998 and their divorce was finalised in early 2016. The central dispute involved the interpretation and enforcement of a financial agreement executed under Section 90D of the Family Law Act 1975, as well as ancillary issues such as the reliance on an affidavit from a third party and the rectification of the agreement. The court was tasked with deciding whether the financial agreement was valid and enforceable, whether the wife could rely on an affidavit from a third party who was unavailable for cross-examination, and whether the agreement could be rectified due to an omission regarding the valuation of superannuation entitlements.

The court's reasoning focused on the enforceability of the financial agreement and the admissibility of the affidavit from Ms Beller. It found that the agreement was valid and binding, but it did not specify the value of the parties' respective superannuation entitlements. Consequently, the court held that rectification was not available as it could not be established that there was a common intention between the parties regarding the valuation of the superannuation. The court also determined that allowing the wife to rely on Ms Beller's affidavit would create an unfair prejudice to Mr Gonsalves, as it would waive privilege in respect of the file of Mr Gonsalves' solicitor, Mr E, during the period leading up to the signing of the agreement. This waiver of privilege did not lead to the discovery of any relevant documents.

Ultimately, the court dismissed the wife's application for the issuance of a warrant to compel a third party to give evidence due to the potential for undue delay, and it also dismissed her application to rely on Ms Beller's affidavit due to the unfair prejudice it would cause. The court further dismissed the application for rectification of the financial agreement, as it could not be established that there was a common intention between the parties regarding the valuation of the superannuation. Consequently, the court dismissed the wife's Further Amended Application filed on 7 November 2023.

Orders

Orders of the court

SYC 1702 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GONSALVES

Applicant

AND:

MR GONSALVES

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

23 DECEMBER 2023

THE COURT ORDERS THAT:

1. The Further Amended Application of the wife filed 7 November 2023 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

At the final hearing the husband relied on the following material:(a)An Outline of Case Document filed 28 November 2023;(b)An Amended Response to Initiating Application filed 22 November 2022;(c)An affidavit of Mr Gonsalves filed 14 June 2019;(d)An affidavit of Mr Gonsalves filed 13 April 2021; and(e)A letter from G Company dated 8 April 2021 (which became Exhibit 1 in proceedings).BACKGROUND The parties married and commenced cohabitation in 1998. There are two children of the marriage: Mr C born 1999 and Mr D born 2004. The parties separated on a final basis on 28 November 2013 and remained living under the same roof until September 2014. Their divorce was made final in early 2016. On 8 June 2016 the parties entered into a financial agreement under s 90D of the Act. On 19 March 2019 the wife commenced proceedings in the Federal Circuit Court (as it then was). It was transferred to the Federal Circuit and Family Court of Australia (Division 1) on 10 November 2020. The matter came before me for case management on 5 September 2022. On that date the matter was listed for final hearing in a rolling list scheduled to commence on 13 March 2023. On 15 December 2022 my chambers received correspondence from the solicitor for the husband who, amongst other concerns, foreshadowed that the husband would make an application to attend the final hearing by electronic communication. That application was filed on 2 March 2023. The matter was listed for mention before me on 3 March 2023. On that occasion I confirmed that Country K interpreters had been booked for both parties for the final hearing and approved the husband’s application to attend the hearing by electronic communication. Despite the application being approved, the husband’s solicitor advised that the husband would be unable to attend the final hearing (even electronically) due to work commitments. In circumstances where the final hearing had been listed since September 2022 and the applicant wished to proceed on the allocated dates, I declined to vacate the final hearing. As it transpired, there were other matters which meant that the trial was vacated by consent. The husband sought to rely on an affidavit of Ms Beller filed 9 March 2023. Ms Beller acted for the wife at the time of the signing of the financial agreement. The husband filed an affidavit in which he indicated he had given explicit instruction to his solicitor, Mr E, that the agreement was not to include a split of his superannuation entitlements. The wife argued, successfully, that this evidence waived privilege in respect of Mr E’s file at least during that period leading up to the signing of the agreement and I granted leave to inspect documents produced on subpoena by Mr E which fell into the period March 2016 to June 2016. It was common ground between the parties that very few documents were produced and none found their way into evidence. On 13 March 2023 I determined the claim of the wife for privilege over the file of Ms Beller and permitted the husband to rely on Ms Beller’s affidavit.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 1702 of 2019
Judgment of:	CHRISTIE J
Date of judgment:	13 December 2023
Catchwords:	FAMILY LAW – APPLICATION FOR ISSUE OF WARRANT – Non-compliance with subpoena – Where a subpoena had been issued to a third party to attend court to give evidence – Where the third party swore an affidavit shortly before the hearing indicating she was unwell and unable to give evidence – Where the issue of a warrant would cause undue delay – Application dismissed. FAMILY LAW – EVIDENCE – Application to rely on affidavit of a deponent unavailable for cross-examination – Where allowing the moving party to rely on the affidavit would create unfair prejudice to the objecting party – Where the probative value of the evidence is substantially outweighed by the unfair prejudice occasioned to the objecting party – Application dismissed. FAMILY LAW – PROPERTY – Financial Agreements – Where the parties entered into a financial agreement pursuant to s 90D of the Family Law Act 1975 (Cth) – Where both parties asserted the agreement was valid and binding – Where the applicant seeks enforcement of a part of the agreement which would require the respondent to split a superannuation interest in his name – Where the agreement did not contain any indication of the value of parties’ respective superannuation entitlements – Where there is no evidence to indicate that the parties were aware of the value of their respective superannuation entitlements – Rectification – Where it is not established that there was a common intention between the parties in sufficiently clear terms – Where rectification is not available – Application dismissed.
Legislation:	Evidence Act 1995 (Cth) s 135 and s 165 Family Law Act 1975 (Cth) Pt VIIIA, ss 79, 90D, 90G Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.41
Cases cited:	Birdwood & Gravino (2023) FLC 94-149 Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101 Graham & Squibb (2019) FLC 93-892 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 Naparus v Frankham [2020] FamCAFC 32 Senior & Anderson (2011) FLC 93-470 Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85
Division:	Division 1 First Instance
Number of paragraphs:	99
Date of hearing:	28 November 2023
Place:	Sydney
Counsel for the Applicant:	Ms Clarke
Solicitor for the Applicant:	J S Pinto & Co
Counsel for the Respondent:	Ms Ingenito
Solicitor for the Respondent:	Bazaliza Lawyers

SYC 1702 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GONSALVES Applicant
AND:	MR GONSALVES Respondent

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	23 DECEMBER 2023