Kirgiz & Carretto
[2022] FedCFamC1F 299
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kirgiz & Carretto [2022] FedCFamC1F 299
File number(s): DGC 458 of 2020 Judgment of: JOHNS J Date of judgment: 28 April 2022 Catchwords: FAMILY LAW – PROCEDURE – adjournment application – threshold issue – validity of binding financial agreement – whether the binding financial agreement is valid pursuant to s 90B of the Family Law Act 1975 (Cth) – where neither party is represented – where the applicant requires the assistance of an interpreter – where the applicant is presently overseas and failed to attend court in person – where the case involves complex technical legal arguments – matter adjourned to enable parties to obtain legal representation Legislation: Family Law Act 1975 (Cth) ss 90B, 90G, Part VIIIA Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 28 April 2022 Place: Melbourne The Applicant: Litigant in Person The Respondent: Litigant in Person ORDERS
DGC 458 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KIRGIZ
Applicant
AND: MR CARRETTO
Respondent
order made by:
JOHNS J
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.That all extant applications in relation to the validity of the agreements dated 30 September 2002 and 3 October 2002 and the question of whether either of those are binding financial agreements within the meaning of s 90b of the Family Law Act 1975 is adjourned for final hearing before me as a two day matter to commence at 10.00am on 13 July 2022.
2.That any further affidavit material to be relied upon by either party be filed and served by 4.00pm on 14 June 2022.
3.That any case outline document to be relied upon by either party be filed and served by 4.00pm on 6 July 2022.
4.That the husband and the wife are each required to attend the hearing in person.
AND THE COURT NOTES:
A.That the husband has informed the Court that he intends to retain lawyers to represent him at the hearing on 13 July 2022.
B.The court has informed both parties that it is the intention of the Court that the matter will proceed on the adjourned hearing date irrespective of whether they have retained lawyers to represent them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kirgiz & Carretto has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
This matter is listed before the Court for final hearing today in relation to a discrete issue, namely, the question of the validity of agreements entered into by the parties on 30 September 2002 and 3 October 2002.
It is the contention of the wife in these proceedings that the second agreement - that is, the agreement of 3 October 2002 - is a Binding Financial Agreement within the meaning of the Family Law Act 1975 (Cth) (“the Act”). It is her case that the agreement is a valid Binding Financial Agreement pursuant to section 90B of the Act.
The husband opposes that position, and maintains that the agreement is not a valid Binding Financial Agreement. It is his position, and he asserts, that the agreement was not validly entered into; he asserts that he did not have independent legal advice prior to executing the agreement and that he entered into the agreement under duress.
The matter has had a number of listings before me but has been delayed, in large part due to the capacity of the Court to deal with the matter as a result of the global pandemic. The proceedings were listed for hearing before me today. It was the intention of the Court that the proceeding be conducted as a face to face hearing.
Notwithstanding that intention, the wife has not attended Court to press her application this day; she appears before the Court electronically. The interpreter engaged by the Court to assist her is present in Court, and has been assisting her, albeit with some difficulty given the geographical separation between the interpreter and the wife.
From the outset, the wife has had difficulty in presenting her case. It took considerable time for her to identify the documents upon which she relied, and it was only with the patient assistance of the interpreter that she was able to identify documents relied upon.
The husband also appears in person today. He is present in Court. When asked to identify the documents that he relied upon, he too exhibited significant difficulty in responding to what is seemingly, a straightforward question. Ultimately, it transpired that the husband has filed only one document in compliance with my original trial directions made 29 March 2021. The document filed by him in compliance with those directions is his Amendment Response to Final Orders, which was filed on 15 October 2021.
The husband has filed no affidavit of evidence-in-chief in compliance with my trial directions. Upon further consideration and review of the court file, an affidavit that was filed on behalf of the husband on 27 July 2020 was identified. The matter was stood down to enable the husband to review that document, and a copy of the document was provided to the wife. The husband, upon review of that document, indicated that he would seek to rely upon that document in support of his position of opposing the wife's application.
Given the obvious difficulties the husband experienced in conducting his case the husband made an oral application for an adjournment of the proceedings to enable him to retain legal representation.
Throughout the course of discussion between the bench and the husband, it has become clear to the husband that he is not appropriately prepared or in a position to properly present his application to the Court this day.
The arguments raised by both the wife and the husband are complex, technical, legal arguments.
The wife too faces challenges in representing herself in the proceedings, firstly because of the technical nature of the arguments raised, and secondly, those issues are compounded as a result of the fact that English is not her first language, and she is reliant upon the assistance of an interpreter.
The husband similarly faces those challenges. In addition, he has informed the Court that he has had ongoing health issues which impede his ability to represent himself. He further indicated to the Court that he has recently lost his mother and is affected by her recent passing. It is for these reasons that he seeks an adjournment of the proceeding to enable him to retain legal representation.
Having listened carefully to the submissions made by both the husband and the wife, I am satisfied that neither is in a position to appropriately press their competing applications this day. In the circumstances, and in order to ensure fairness to both parties, I have determined that the only appropriate course is to adjourn the proceedings to enable each of the parties to retain representation for the trial.
It is likely that at trial each party will need to address the necessary provisions of Part VIIIA of the Family Law Act 1975 (Cth), which deals with financial agreements. The parties will need to satisfy the court that the requirements under Part VIIIA, particularly with respect to section 90G of the Act, have been met or not. Insofar as the husband is concerned, he will need to identify the issues of whether the agreement is invalidated as a result of a failure to have obtained or be provided with appropriate legal advice. He will also need to be in a position to adduce evidence and make submissions in relation to the alleged duress. Further, given the nature of the issues raised by the husband, it is likely that there will need to be cross-examination of both the husband and wife as to the circumstances in which both agreements were executed.
It is for these reasons that I have determined that both parties should be afforded the opportunity of obtaining legal advice in relation to these matters. If they elect not to do so, then the matter will proceed, as best it can, on its adjourned date. However, in my mind, it is appropriate, given the nature of the issues that are in dispute, that the parties have a further opportunity to retain and secure legal advice to ensure that they are in their best position to advance their respective cases before me. Having regard to all of those matters, I make orders as follows:-
1.That all extant applications in relation to the validity of the agreements dated 30 September 2002 and 3 October 2002 and the question of whether either of those are binding financial agreements within the meaning of s 90b of Family Law Act 1975 is adjourned for final hearing before me as a two day matter to commence at 10.00am on 13 July 2022.
2.That any further affidavit material to be relied upon by either party be filed and served by 4.00pm on 14 June 2022.
3.That any case outline document to be relied upon by either party be filed and served by 4.00pm on 6 July 2022.
4.That the husband and the wife are each required to attend the hearing in person.
AND THE COURT NOTES:
(A)That the husband has informed the Court that he intends to retain lawyers to represent him at the hearing on 13 July 2022.
(B)The court has informed both parties that it is the intention of the Court that the matter will proceed on the adjourned hearing date irrespective of whether they have retained lawyers to represent them.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 28 April 2022
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