J & J

Case [2006] FamCA 442 29 March 2006

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[2006] FamCA 442

FAMILY LAW ACT 1975

IN THE FAMILY COURT

OF AUSTRALIA

AT PARRAMATTA No. PAF.464 of 2005

BETWEEN:

J Applicant/Wife

AND

J Respondent/Husband

CORAM: The Honourable Justice D Collier

DATE OF HEARING: 29 March 2006

DATE OF JUDGMENT: 29 March 2006

JUDGMENT OF THE COURT

APPEARANCES: Mr Harrison, instructed by Lang Gellert & Noonan, Solicitors, appeared on behalf of the Applicant/Wife

Mr Kearney, instructed by Watts McCray, Solicitors, appeared on behalf of the Respondent/Husband

CATCHWORDS:

FAMILY LAW - PROPERTY - Binding financial agreements

Introduction

This matter came before me today by reference from the list Judge. The matter was listed before her as a reserve matter as to property. The issue that I have been asked to determine is whether a document described as a ‘binding financial agreement’ is in fact binding.
The agreement was entered into between these parties on 3 November 2004. A copy of it is before me and is agreed by the parties to be identical in all terms and all respects to the document that was executed by them. The document is described on its face as a Deed of Financial Agreement pursuant to section 90C of the Family Law Act (1975) as amended. The document comprises a number of paragraphs by way of recitals and background, including matters that were, on the face of it, agreed upon by the parties. It further then contains clauses of an operative nature, and it is executed by each of the parties as if it were a deed.
Attached are certificates by solicitors, Damian Ralph McKay, who certified that he gave advice to the wife, and David Sutherland Bannerman, who certified that he gave advice to the husband. I will return to those certificates later in these reasons for judgment.

The Applications Before Me

The wife, by her application filed on 30 March 2005, seeks that the agreement be enforced as though it were an order of the Court. She makes reference particularly to section 90KAC of the Family Law Act, and I note that section 90G(2) also seems to confer the power to enforce as though it were an order of the Court.
The husband, by his amended response of 28 March 2006, and before me so far as my part in these proceedings is concerned, seeks that the wife's application for enforcement be dismissed. I have discussed with both Mr Kearney and Mr Harrison what it is they would have me do if I come to the conclusion that the agreement indeed is not binding upon the parties, and I will endeavour to return to that later in these reasons for judgment.
On that basis I have treated the husband as the applicant before me in the limited issue that it falls to me to determine today, and that is whether the document constitutes a binding agreement within the meaning of the Act.

The Documents Relied Upon

The husband has relied upon documents being the agreement itself, and he also tendered to…

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

AGLC: J & J [2006] FamCA 442
Case: [2006] FamCA 442
Decision Date: 29 March 2006

CaseChat Overview and Summary

In the matter of *J & J*, Justice Collier of the Supreme Court of Western Australia considered a dispute concerning the interpretation of a deed of settlement. The parties involved were J and J, who had entered into the deed to resolve prior litigation. The central issue revolved around whether the deed effectively released J from certain obligations.

The primary legal question before the Court was whether the language of the deed of settlement, specifically clause 3, unambiguously released J from all claims, including those arising from a particular loan agreement, or if it was limited to claims directly related to the original proceedings that the deed was intended to settle. The Court had to determine the scope and effect of the release provision within the context of the entire deed and the surrounding circumstances.

Justice Collier reasoned that the plain and ordinary meaning of the words used in clause 3, when read in conjunction with the rest of the deed, indicated a broad release of all claims. The Court applied the principle that clear and unambiguous language in a deed of settlement will be given its full effect, even if it extends beyond the immediate subject matter of the dispute it was intended to resolve, provided that intention is evident from the wording. The Court found that the wording of clause 3 was sufficiently comprehensive to encompass the claims arising from the loan agreement, thereby releasing J from those obligations.

Orders