Kaimal & Kaimal

Case [2020] FamCA 971


FAMILY COURT OF AUSTRALIA

KAIMAL & KAIMAL [2020] FamCA 971
FAMILY LAW – PROPERTY – binding financial agreement – where the wife seeks to either declare not binding or set aside a financial agreement between the parties – whether the wife was provided with legal advice pursuant to s 90G(1)(b) of the Family Law Act – whether it would be unjust and inequitable if the financial agreement was declared not binding on the parties – whether the financial agreement should be set aside on the basis of fraud pursuant to s 90K(1)(a) of the Act – whether the financial agreement is void for uncertainty pursuant to s 90K(1)(b) of the Act – whether the financial agreement should be set aside on the basis of unconscionable conduct pursuant to s 90K(1)(e) of the Act – wife not provided with necessary legal advice – financial agreement void for uncertainty – financial agreement not valid.
Family Law Act 1975 (Cth) s 90G and s 90K

Abrum & Abrum [2013] FamCA 897
Adame & Adame [2014] FCCA 42
Briginshaw v Briginshaw (1938) 60 CLR 336
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Daily & Daily [2020] FamCA 486

Hoult & Hoult [2013] FamCAFC 109, (2013) 50 Fam LR 260, (2013) FLC 93-546
Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392
Kostres & Kostres [2009] FamCAFC 222, (2009) 42 Fam LR 336, (2009) FLC 93-420
Parker & Parker [2012] FamCAFC 33, (2012) 47 Fam LR 122, (2012) FLC 93-499,
Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-550
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49; (2017) 56 Fam LR 559, (2017) FLC 93-807
Wallace & Stelzer and Anor [2013] FamCAFC 199, (2013) FLC 93-566

APPLICANT: Ms Kaimal
RESPONDENT: Mr Kaimal
FILE NUMBER: SYC 602 of 2020
DATE DELIVERED: 20 November 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: Hobart
JUDGMENT OF: Chief Justice Alstergren
HEARING DATE: 12 and 18 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Barnett
SOLICITOR FOR THE APPLICANT: The Norton Law Group
COUNSEL FOR THE RESPONDENT: Not Applicable
SOLICITOR FOR THE RESPONDENT: QV Law

Orders

  1. IT IS DECLARED THAT the financial agreement signed by the husband and the wife on 30 July 2018 is not binding within the meaning of s 90G of the Family Law Act 1975 (Cth).

  2. The parties file any affidavit evidence and an outline of submissions in relation to costs by 4.00pm on Friday 27 November 2020.

  3. The issue of costs be determined on the papers without the need for oral hearing.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kaimal & Kaimal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical…

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AGLC
Kaimal & Kaimal [2020] FamCA 971
Case
[2020] FamCA 971
Decision Date

CaseChat Overview and Summary

In *Kaimal & Kaimal*, the Chief Justice was required to determine the validity of a financial agreement entered into by the husband and wife on 30 July 2018. The dispute concerned whether this agreement was binding under section 90G of the *Family Law Act 1975* (Cth).

The central legal issue before the Court was whether the financial agreement met the stringent requirements for validity stipulated by section 90G of the *Family Law Act 1975* (Cth). Specifically, the Court had to consider whether the agreement was properly executed and if the parties had received the necessary independent legal advice prior to signing.

The Court declared that the financial agreement was not binding within the meaning of section 90G of the *Family Law Act 1975* (Cth). While the specific reasoning for this declaration is not detailed in the provided text, the outcome indicates that at least one of the statutory requirements for a binding financial agreement was not satisfied. The Court then ordered the parties to file evidence and submissions regarding costs, with the issue of costs to be determined on the papers.

Orders

Orders of the court

1.

IT IS DECLARED THAT the financial agreement signed by the husband and the wife on 30 July 2018 is not binding within the meaning of s 90G of the Family Law Act 1975 (Cth).

2.

The parties file any affidavit evidence and an outline of submissions in relation to costs by 4.00pm on Friday 27 November 2020.

3.

The issue of costs be determined on the papers without the need for oral hearing.

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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