Joyce and Joyce - [2011] FMCAfam 898

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOYCE & JOYCE

[2011] FMCAfam 898

FAMILY LAW – Validity of binding financial agreement – allegations of oppressive conduct – allegations of fraud – relevance of changes in arrangements for children – nature of independent legal advice – duty of disclosure – summary dismissal.

Family Law Act 1975, ss.90G, 90K
Federal Magistrates Act 2000, s.17A
Child Support (Registration and Collection) Act1988
Child Support (Assessment) Act 1989
Workers Compensation Act 1987

Friar & Friar [2011] FamCAFC 71
Lindon & The Commonwealth [1996] HCA 14
Black & Black [2008] FamCAFC 7
Garlick & Garlick (1993) FLC 92-428
Weir & Weir (1993) FLC 92-338
Black & Kellner (1992) FLC 92-287
Cording & Oster [2010] FamCA 511
Commercial Bank of Australia & Amadio [1983] HCA 14
Gebert (1990) FLC 92-137
Cameron (1988) FLC 91-946

Applicant:

MS JOYCE

Respondent:

MR JOYCE

File Number:

SYC 3801 of 2008

Judgment of:

Harman FM

Hearing date:

30 June 2011

Date of Last Submission:

30 June 2011

Delivered at:

Parramatta

Delivered on:

30 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr Ladopoulos

Solicitors for the Applicant:

E Berman & Co

Counsel for the Respondent:

Ms Winfield

Solicitors for the Respondent:

Lexington Law Group

ORDERS

Pursuant to s.90G of the Family Law Act 1975, I declare that the binding financial agreement entered into between Mr Joyce and

Ms Joyce and dated 17 July 2008 is binding upon those parties.
Discharge the orders made 24 January 2001 to the extent that they remain extant and as a consequence the husband shall be and is hereby immediately entitled to the release to him by Lexington Law Group of all funds together with any interest accumulated there upon held by them in trust pursuant to those orders.
The wife shall within seven days do all acts and things and give all consents and authorities necessary to deliver to the husband or his attorneys a form of withdrawal of caveat in registrable form capable of immediate registration and so as to allow and permit the husband to cause the removal of such caveat and title of the property [omitted].
In the event that either party shall fail, neglect or refuse to sign any deed, document or instrument required by or to give effect to these orders then the Registrar of the Federal Magistrates Court Parramatta shall be and is hereby authorised, directed and empowered to sign such deed, document or instrument in the name of the defaulting party (same to be proved by production of an affidavit by the party requesting signature) and to thereafter do all things and acts necessary to give validity and operation to same.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues…

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.

Continue reading Joyce and Joyce

Details

AGLC: Joyce and Joyce [2011] FMCAfam 898
Case: [2011] FMCAfam 898
Decision Date: 30 June 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Joyce and Joyce involved a dispute regarding a binding financial agreement and subsequent court orders. The parties, Mr. Joyce and Ms. Joyce, had entered into a binding financial agreement dated 17 July 2008. The court was tasked with determining the enforceability of this agreement and various other related matters. The legal issues included the validity of the binding financial agreement, the discharge of certain orders made in 2001, and the necessity for the wife to provide a withdrawal of caveat. The court also had to consider the consequences if either party failed to comply with the orders.

The court ruled that the binding financial agreement was valid and enforceable under section 90G of the Family Law Act 1975. The orders made on 24 January 2001 were discharged, allowing the husband to retrieve all funds held by Lexington Law Group. The wife was required to deliver a form of withdrawal of caveat to the husband within seven days. The court empowered the Registrar to sign any necessary documents if either party failed to comply, ensuring the orders were effectively implemented. Finally, the court directed that all exhibits and subpoenaed materials be returned to their respective owners after the appeal period, provided no appeal was lodged. All pending applications and responses were withdrawn and dismissed.

Orders

Orders of the court

Pursuant to s.90G of the Family Law Act 1975, I declare that the binding financial agreement entered into between Mr Joyce and

Ms Joyce and dated 17 July 2008 is binding upon those parties.

Discharge the orders made 24 January 2001 to the extent that they remain extant and as a consequence the husband shall be and is hereby immediately entitled to the release to him by Lexington Law Group of all funds together with any interest accumulated there upon held by them in trust pursuant to those orders.

The wife shall within seven days do all acts and things and give all consents and authorities necessary to deliver to the husband or his attorneys a form of withdrawal of caveat in registrable form capable of immediate registration and so as to allow and permit the husband to cause the removal of such caveat and title of the property [omitted].

In the event that either party shall fail, neglect or refuse to sign any deed, document or instrument required by or to give effect to these orders then the Registrar of the Federal Magistrates Court Parramatta shall be and is hereby authorised, directed and empowered to sign such deed, document or instrument in the name of the defaulting party (same to be proved by production of an affidavit by the party requesting signature) and to thereafter do all things and acts necessary to give validity and operation to same.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

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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