GUEST & RASEVIC

[2016] FamCA 91

FAMILY COURT OF AUSTRALIA

GUEST & RASEVIC [2016] FamCA 91

FAMILY LAW – BINDING FINANCIAL AGREEMENT – Whether a financial agreement is binding upon the parties – where the husband was not provided with independent legal advice prior to signing the agreement – where the parties agree that the agreement is not binding – declaration made that the financial agreement is not binding upon the parties within the meaning of s 90G

Family Law Act 1975 (Cth), s 90G

APPLICANT: Mr Guest

RESPONDENT: Ms Rasevic

FILE NUMBER: MLC 4492 of 2015

DATE DELIVERED: 12 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 2 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Puckey

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Ms Treyvaud

SOLICITOR FOR THE RESPONDENT: Tait Lawyers

Orders made 2 February 2016

IT IS ORDERED THAT

1. It is declared that the Financial Agreement signed by the parties on 14 February 2006 is not binding upon them within the meaning of Section 90G of the Family Law Act 1975.

2. The reasons of Justice Macmillan with respect to that declaration be reserved.

IT IS ORDERED BY CONSENT THAT

1. Paragraph 1 of the Wife’s Response filed 15 July 2015 and paragraph 1 -5 of the Wife’s Application in a Case filed 12 October 2015 are dismissed.

2. The Wife do within 14 days file and serve an amended Response to the Husband’s Initiating Application setting out the Orders she seeks as to a division of property between the parties.

3. The parties forthwith engage as a single expert at their equally shared expense and otherwise in accordance with the Court’s single expert rules, an appropriately qualified valuer to value former matrimonial home at B Street, Suburb C.

IT IS FURTHER ORDERED THAT

1. The matter be placed in the list of cases awaiting allocation to a judicial docket with priority from 29 October 2015.

IT IS CERTIFIED THAT

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES THAT

A.Despite paragraphs 2 of these Orders the wife reserves her right to joint D Lawyers in these proceedings, who have been advised of these proceedings and who will be advised of these Orders by the wife’s solicitors.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Guest & Rasevic 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 MELBOURNE

FILE NUMBER: MLC 4492  of 2015

Mr Guest

Applicant

And

Ms Rasevic

Respondent

REASONS FOR JUDGMENT

1. This matter was listed before me in the Judicial Duty List on 2 February 2016. On that date I made a declaration that the Financial Agreement signed by the parties on 14 February 2006 (“the Financial Agreement”) was not binding upon them. I reserved my reasons for making that declaration and these are those reasons.

2. On 20 May 2015 the husband filed an initiating application seeking orders for property settlement. The wife in her response to initiating application filed 15 July 2015 sought orders striking out the husband’s application and an order for costs. On 12 October 2015 the wife filed an application in a case seeking a declaration pursuant to s 90G(1B) of the Family Law Act 1975 (Cth) that the Financial Agreement signed by the parties on 14 February 2006 is binding upon the parties or in the alternative that if the Court were to declare that the Financial Agreement was not binding, D Lawyers be joined as a party to the proceedings.

3. The husband opposed the wife’s application for a declaration on the basis that he had not received independent legal advice about the effect of the agreement upon his rights. The husband deposed that it was the wife who engaged a solicitor to act on her behalf and instructed him to prepare a financial agreement. He further deposed that both he and the wife met with that solicitor on 14 February 2006 at which time both he and the wife signed the agreement. His evidence was that he had not seen the Financial Agreement he signed or even a draft of that agreement prior to that meeting when the document was signed.

4. Although the wife’s evidence is that the husband had agreed that they should obtain legal advice in relation to obtaining a binding financial agreement and had provided the wife with the information and helped her prepare a draft of the agreement, significantly, in my view, there was no  dispute that the husband had not obtained independent legal advice. In fact it was the wife’s evidence that the husband told the solicitor on the day that he signed the Financial Agreement that he had not obtained independent legal advice and that he did not intend to do so. It was the wife’s evidence that both she and the husband thought he had waived his right to obtain independent legal advice and that had she known that the Financial Agreement would not be binding in the event of the husband not having obtained independent legal advice, she would have insisted upon him doing so. Although there is a dispute as to whether the husband was asked whether he had obtained independent legal advice or was aware of any requirement for him to do so, what is absolutely clear on the evidence of both the husband and the wife is that he was not provided with independent legal advice about the effect of the Financial Agreement on his rights or the advantages or disadvantages of that agreement.

5. Counsel for the wife conceded, rightly so in my view given the evidence, that the Financial Agreement was not binding upon the parties and that the Court should make the declaration to that effect. I am satisfied that in all of these circumstances it is appropriate to make that declaration.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 12 February 2016.

Associate:

Date:  12 February 2016