Graham & Squibb

Case [2019] FamCAFC 33


FAMILY COURT OF AUSTRALIA

GRAHAM & SQUIBB [2019] FamCAFC 33

FAMILY LAW – APPEAL – FINANCIAL AGREEMENT – Where the parties executed an agreement before marriage purporting to deal with their pre-marital assets in the event of separation – Where upon final separation the wife commenced proceedings in the Federal Circuit Court of Australia seeking a declaration that the agreement was binding on the parties – Where the husband sought to have the agreement set aside – Where the primary judge correctly rectified the agreement to reflect its status as a financial agreement under s 90B of the Family Law Act 1975 (Cth) – Where it was open on the evidence for the primary judge to infer the parties’ common intention to execute a binding financial agreement – Where the primary judge was correct to make a declaration that the financial agreement was binding on the parties pursuant to s 90G(1) of the Family Law Act 1975 (Cth) – Where no merit to appeal – Appeal dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Whether the orders appealed are interlocutory or final – Where determination of the validity and binding nature of a financial agreement is a final order – Where leave to appeal is not necessary.

FAMILY LAW – APPEAL – COSTS – Where the wife sought indemnity costs or alternatively, costs calculated on a party/party basis – Where factors under s 117(2A) of the Family Law Act 1975 (Cth) considered – Where the wife contended she made a reasonable offer of settlement which the husband imprudently refused – Where appeal wholly unsuccessful – Discussion of principles governing fixing costs – Where the husband ordered to pay the wife’s costs on a party/party basis in a fixed amount.

Family Law Act 1975 (Cth) ss 4(1), 71A, 90B, 90C, 90D, 90G, 90K, 90KA, 94AA, 117
Family Law Rules 2004 (Cth) r 19.18(1)(a)
Family Law Regulations 1984 (Cth) reg 15A
Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119; [1995] FCA 1250
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
D & D (Costs) (No. 2) (2010) FLC 93-435; [2010] FamCAFC 64
Fewster & Drake (2016) FLC 93-745; [2016] FamCAFC 214
Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407
Hoult & Hoult (2013) FLC 93-546; [2013] FamCAFC 109
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kohan and Kohan (1993) FLC 92-340
Kostres & Kostres (2009) FLC 93-420; [2009] FamCAFC 222
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23
Maitland Hospital v Fisher (No. 2) (1992) 27 NSWLR 721
Messiter v Hutchinson (1987) 10 NSWLR 525
Muriti v Prendergast [2005] NSWSC 281
Pukallus v Cameron (1982)…

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Details
AGLC
Graham & Squibb [2019] FamCAFC 33
Case
[2019] FamCAFC 33
Decision Date

CaseChat Overview and Summary

The appeal in Graham & Squibb involved the validity of a financial agreement executed by the parties prior to their marriage. The wife sought a declaration in the Federal Circuit Court of Australia that the agreement was binding upon their separation, while the husband sought to have it set aside. The primary judge had rectified the agreement to align it with the requirements of a financial agreement under section 90B of the Family Law Act 1975 (Cth) and determined it was binding on the parties. The husband's appeal against this decision was dismissed as it was found that the primary judge was correct in inferring the parties' common intention to enter into a binding financial agreement.

The court addressed the issue of whether the orders appealed were interlocutory or final. It was established that a determination regarding the validity and binding nature of a financial agreement constitutes a final order, thus rendering leave to appeal unnecessary. The appeal was dismissed on the basis that no merit was found in the arguments presented. Additionally, the court considered the wife's request for indemnity costs or, alternatively, costs on a party/party basis. It was determined that the wife had made a reasonable offer of settlement, which the husband imprudently refused, leading to the imposition of costs on a party/party basis in a fixed amount.

The final orders of the court included the dismissal of the appeal and the requirement for the appellant to pay the respondent's costs of and incidental to the appeal in the sum of $31,539.50, subject to the entry of the order in the Court’s records. The decision underscores the importance of correctly rectifying and interpreting financial agreements in family law matters and highlights the consequences of failing to adhere to reasonable settlement offers.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $31,539.50.

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

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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