LOTTA & LOTTA - [2015] FamCA 360

FAMILY COURT OF AUSTRALIA

LOTTA & LOTTA

[2015] FamCA 360

FAMILY LAW – PROPERTY – Binding financial agreement – where financial agreement purports to be an agreement under s 90C of the Act – where no reference to s 90C in the financial agreement – where agreement fails to comply with the provisions of s 90G of the Act as to the provision of independent legal advice before the signing of the agreement and no signed statements to that effect provided by any legal practitioners – where no application under s 90G(1A) in respect to the defects in the agreement - where agreement not a financial agreement for the purposes of the Act – where the agreement not a binding financial agreement for the purposes of the Act.

Family Law Act 1975 (Cth) Part VIIIA, ss 90C, 90G

APPLICANT:

Mr Lotta

RESPONDENT:

Ms Lotta

FILE NUMBER:

PAC

3435

2013

DATE DELIVERED:

18 May 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

2 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Samuel Jones Legal Services

COUNSEL FOR THE RESPONDENT:

Ms Beck

SOLICITOR FOR THE RESPONDENT:

Thurlow Fisher Lawyers & Consultants

Orders

That the husband’s application in a case filed 12 February 2015 seeking a declaration that the agreement between the parties dated 14 April 2009 is a binding financial agreement for the purposes of Part VIIIA of the Act be dismissed.
That any application for costs be by way of application in a case supported by affidavit filed within one month from the date of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lotta & Lotta 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 PARRAMATTA

FILE NUMBER: PAC 3435 of 2013

Mr Lotta

Applicant

And

Ms Lotta

Respondent

REASONS FOR JUDGMENT

The application before the Court for determination is a discrete one.
The husband seeks a declaration that the “financial agreement” signed by himself and his former wife on 14 April 2009 is a binding “financial agreement” for the purposes of Part VIIIA of the Family Law Act 1975 in that it precludes any financial application including spousal maintenance being made to the Court by the wife.
The wife contends that the agreement is not a “financial agreement” for the purposes of the Act nor is it a binding “financial agreement”.

Context

On 17 March 2015 directions were made listing the husband’s application in a case filed 12 February 2015 for hearing on 2 April 2015. Each party was ordered to file and serve one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses on which they rely in support of the orders sought by them by no later than Tuesday 31 March 2015.
The husband relied upon his consolidated affidavit filed on 13 March 2015.
The wife relied upon her consolidated affidavit filed on 31…

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 LOTTA & LOTTA

Details

AGLC: LOTTA & LOTTA [2015] FamCA 360
Case: [2015] FamCA 360
Decision Date: 18 May 2015

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, constituted by Foster J, considered an application by the husband seeking a declaration that a financial agreement entered into by the parties on 14 April 2009 was a binding financial agreement for the purposes of Part VIIIA of the *Family Law Act 1975* (Cth). The wife opposed this application.

The central legal issue before the court was whether the financial agreement dated 14 April 2009 met the requirements of s 90D of the *Family Law Act 1975* (Cth) to be considered a binding financial agreement. Specifically, the court had to determine if the agreement was made in accordance with the formalities prescribed by the Act, including whether it was signed by both parties and whether each party received independent legal advice before signing.

Foster J found that the agreement was not binding. The reasoning focused on the absence of evidence demonstrating that the wife had received independent legal advice prior to signing the agreement, a mandatory requirement under s 90D(1)(b) of the Act. Without proof of this essential step, the agreement could not be declared a binding financial agreement.

Consequently, the husband's application for a declaration that the agreement was binding was dismissed. The court also made orders regarding any applications for costs, requiring them to be filed within one month of the date of the orders, supported by affidavit.

Orders

Orders of the court

That the husband’s application in a case filed 12 February 2015 seeking a declaration that the agreement between the parties dated 14 April 2009 is a binding financial agreement for the purposes of Part VIIIA of the Act be dismissed.

That any application for costs be by way of application in a case supported by affidavit filed within one month from the date of these orders.

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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