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MANNER & MANNER

MANNER & MANNER

Case [2015] FCCA 3043 18 November 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MANNER & MANNER

[2015] FCCA 3043

Catchwords:
FAMILY LAW – Binding financial agreement – whether an agreement at law – whether agreement is a financial agreement per s.90B – whether financial agreement binding per s.90G – whether financial agreement should be set aside per s.90K.

Legislation:

Family Law Act 1975, ss.4, 71A, 90B, 90B(1)(a), 90B(1)(aa), 90B(2)(a), 90C, 90D, 90G, 90G(1) 90G(1)(b), 90G(1A), 90G(1A)(a), 90G(1A)(b), 90G(1A)(c), 90G(1A)(e), 90G(1B), 90J, 90J(1), 90J(1)(a), 90J(1)(b), 90K, 90K(1)(e), 90KA
Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009, items 8A, 8(1), 8A(2), 8(6)
Property Law Act 1974 (Qld), chapter 19

Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19
Black & Black (2008) FLC 93-357
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Commonwealth v Verwayen (1990) 131 CLR 394
Crawley v Short [2009] NSWCA 410
G & G (2000) FLC 93-043
Hoult & Hoult [2013] FamCAFC 109
Jeeves & Jeeves (No.3) [2010] FamCA 488
Logan & Logan [2013] FamCAFC 151
Masters v Cameron (1954) 91 CLR 35
Raleigh & Raleigh [2015] FamCA 625
Savage v Lunn [1998] NSWCA 203
Senior v Anderson [2011] FamCAFC 129
Sullivan & Sullivan (2011) 46 Fam LR 164
Ryan & Joyce [2011] FMCAfam 225
Wallace v Stelzer (2013) 51 Fam LR 115

Applicant:

MS MANNER

Respondent:

MR MANNER

File Number:

BRC 10789 of 2009

Judgment of:

Judge Jarrett

Hearing dates:

25 & 26 November 2013

Date of Last Submission:

27 January, 2014

Delivered at:

Brisbane

Delivered on:

18 November 2015

REPRESENTATION

Counsel for the Applicant:

Mr Bunning

Solicitors for the Applicant:

Simonidis Steel Lawyers

Counsel for the Respondent:

Ms McMillan QC

Solicitors for the Respondent:

HopgoodGanim

ORDERS

The application for orders numbered 3, 4 and 5 of the Applicant's Amended Amended Initiating Application filed 15 January, 2013 be dismissed.
That pursuant to s.90G(1B) of the Family Law Act1975 (Cth) the Court declares that the financial agreement entered into by Mr Manner and Ms Manner on 16 November, 2007 is binding.
All outstanding applications be adjourned to 14 December, 2015 for further directions.

IT IS NOTED that publication of this judgment under the pseudonym Manner & Manner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10789 of 2009

MS MANNER

Applicant

And

MR MANNER

Respondent

REASONS FOR JUDGMENT

Ms Manner and Mr Manner purported to enter into an agreement that they have termed in these proceedings a “binding financial agreement” on 16 November, 2007. They married the on (omitted) 2007.
By these proceedings Ms Manner seeks:
a)a declaration that the agreement is not a financial agreement that is binding for the purposes of the Act; or, in the alternative,
b)if it is a financial agreement that is binding, an order be made that it be set aside.
Mr Manner opposes the application. He seeks an order that the application be dismissed and a declaration, pursuant to s.90G(1B) of the Act, that…

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: MANNER & MANNER [2015] FCCA 3043
Case: [2015] FCCA 3043
Decision Date: 18 November 2015

CaseChat Overview and Summary

In the matter of *Manner & Manner*, Judge Jarrett of the Family Court of Australia was required to determine an application concerning the validity of a financial agreement entered into by Mr and Ms Manner. The applicant sought to have certain orders made, but the central dispute revolved around whether the financial agreement was binding.

The primary legal issue before the Court was whether the financial agreement dated 16 November 2007 was binding on the parties, pursuant to section 90G(1B) of the *Family Law Act 1975* (Cth). This required the Court to consider the specific requirements for a financial agreement to be deemed binding under that provision.

Judge Jarrett reasoned that the financial agreement met the statutory requirements for a binding agreement. The Court declared that the financial agreement entered into by Mr Manner and Ms Manner on 16 November 2007 was binding. Consequently, the application for orders numbered 3, 4, and 5 of the Applicant's Amended Amended Initiating Application filed on 15 January 2013 was dismissed. All other outstanding applications were adjourned for further directions.

Orders

Orders of the court

The application for orders numbered 3, 4 and 5 of the Applicant's Amended Amended Initiating Application filed 15 January, 2013 be dismissed.

That pursuant to s.90G(1B) of the Family Law Act 1975 (Cth) the Court declares that the financial agreement entered into by Mr Manner and Ms Manner on 16 November, 2007 is binding.

All outstanding applications be adjourned to 14 December, 2015 for further directions.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

MANNER & MANNER [2015] FCCA 3043

Most Recent Citation

Carran & Carran [2022] FedCFamC2F 818

Cases Citing This Decision

Carran & Carran [2022] FedCFamC2F 818
Citation 1 (Para 13)

…v Stasiuk [2020] FamCA 348, [67], noting that Wilson J refers to a number of texts including Heydon (n 25). [30] Manner & Manner [2015] FCCA 3043, [57]-[59], at which Judge Jarret (as he then was) sets out the process clearly; the financial agreement must first be a contract (citing s 90KA of the Act and May J’s r…
Teasdale and Teasdale (No.2) [2018] FCCA 3297
Citation 2

…amily Law Act 1975 , ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D, 75, 79, 90G, 90K Cases cited: Hoult & Hoult [2013] FamCAFC 109 Manner & Manner [2015] FCCA 3043 Lotta & Lotta [2016] FamCA 50 Applicant: MR TEASDALE…

See all citing cases →

Cases Cited

Raleigh & Raleigh [2015] FamCA 625
Citation 1 (Para 3)

…See also Raleigh & Raleigh [2015] FamCA 625 at [174].…
Wallace v Stelzer [2014] HCATrans 135
Citation 2 (Para 4)

…The form of s.90G(1)(b) of the Act to now be considered is that following the amendments to that section by the Efficiency Measures Act: Wallace v Stelzer (2013) 51 Fam LR 115 at [62] – [65]. Further, by reason of item 8A of schedule 5 to that Act, s.90G(1)(b) will be satisfied if the evidence satisfies either the form of…
Mardones and Mardones [2012] FMCAfam 323
Citation 3 (Para 2)

…ever, the test of unconscionability in s.90K(1)(e) of the Act has a wider import than it has in ordinary commercial contracts. In Mardones & Mardones [2012] FMCAfam 323 Judge Burchardt said: 100. Although I have been referred to authority on the question of what constitutes unconscionable conduct, it needs to be born…
Senior & Anderson [2011] FamCAFC 129
Citation 4 (Para 1)

…For there to be a financial agreement for the purposes of the Family Law Act, there must first be an agreement: Senior v Anderson [2011] FamCAFC 129 at [88]. The agreement must be a contract: s.90KA of the Act.…
Ryan and Joyce [2011] FMCAfam 225
Citation 5 (Para 15)

…Moreover, I accept Mr Manner’s submission that the reference in clause 19 to ss.90C or 90D “ought to be read down”. In Ryan & Joyce [2011] FMCAfam 225, Neville FM, as his Honour then was, adopted a similar approach after recounting the following passage from Australian Securities and Investments Commission v Fortescu…
Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19
Citation 6 (Para 15)

…ed a similar approach after recounting the following passage from Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19 (18 February 2011) at [122] (Keane CJ): It is well established that the courts strive to uphold bargains: Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; [1932]…
Wallace and Stelzer [2011] FamCA 54
Citation 7 (Para 7)

…by the solicitor to the relevant party, but rather, to the fact that advice of that nature was given: Hoult at [101] and [279]; see Wallace & Stezler [2011] FamCA 54 at [261]; on appeal [2013] FamCAFC 199 at [103] and Logan & Logan [2013] FamCAFC 151 at [51].…
Jeeves and Jeeves (No 3) [2010] FamCA 488
Citation 8 (Para 1)

…In Jeeves & Jeeves (No.3) [2010] FamCA 488 Cronin J described the concept of fraud for the purposes of s.90K(1)(a) as follows (at [485]): The simple use of the word “Fraud” in s 90K must be read widely because of the inclusion of the reference to non-disclosure of a “material matter”. Thus it encompasses knowledge…
Crawley v Short [2009] NSWCA 410
Citation 9

…& Black (2008) FLC 93-357 Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Commonwealth v Verwayen (1990) 131 CLR 394 Crawley v Short [2009] NSWCA 410 G & G (2000) FLC 93-043 Hoult & Hoult [2013] FamCAFC 109 Jeeves & Jeeves (No.3) [2010] FamCA 488 Logan & Logan [2013] FamCAFC 151 Masters v Cameron (…
Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98
Citation 10 (Para 15)

…intention of the parties, even if that intention has been obscurely expressed: Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98, esp at [6]-[8]. Further, the courts may, where circumstances permit, apply objective standards of reasonableness to prevent the intention of the parties b…
Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60
Citation 11 (Para 15)

…hallenge Electricity Corporation of New Zealand [2002] 2 NZLR 433 at [64]-[67]; Moffat Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60.…
Savage v Lunn [1998] NSWCA 203
Citation 12

…& Jeeves (No.3) [2010] FamCA 488 Logan & Logan [2013] FamCAFC 151 Masters v Cameron (1954) 91 CLR 35 Raleigh & Raleigh [2015] FamCA 625 Savage v Lunn [1998] NSWCA 203 Senior v Anderson [2011] FamCAFC 129 Sullivan & Sullivan (2011) 46 Fam LR 164 Ryan & Joyce [2011] FMCAfam 225 Wallace v Stelzer (2013) 51 Fam LR 115…
Commonwealth v Verwayen [1990] HCA 39
Citation 13 (Para 16)

…An analogy is to be found in the principle of election to which each of the parties referred me in their written submissions. In Commonwealth v Verwayen (1990) 131 CLR 394 at 407, the principle was described thus: The doctrine only applies if the rights are inconsistent the one with the other and it is this concurrent existence…
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14
Citation 14

…Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19 Black & Black (2008) FLC 93-357 Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Commonwealth v Verwayen (1990) 131 CLR 394 Crawley v Short [2009] NSWCA 410 G & G (2000) FLC 93-043 Hoult & Hoult [2013] FamCAFC 109 Jeeves & Jeeves (No.3) [2010…
Masters v Cameron [1954] HCA 72
Citation 15

…rt [2009] NSWCA 410 G & G (2000) FLC 93-043 Hoult & Hoult [2013] FamCAFC 109 Jeeves & Jeeves (No.3) [2010] FamCA 488 Logan & Logan [2013] FamCAFC 151 Masters v Cameron (1954) 91 CLR 35 Raleigh & Raleigh [2015] FamCA 625 Savage v Lunn [1998] NSWCA 203 Senior v Anderson [2011] FamCAFC 129 Sullivan & Sullivan (2011) 46 Fam LR…
Wallace & Stelzer and Anor [2013] FamCAFC 199
Citation 16 (Para 7)

…ty, but rather, to the fact that advice of that nature was given: Hoult at [101] and [279]; see Wallace & Stezler [2011] FamCA 54 at [261]; on appeal [2013] FamCAFC 199 at [103] and Logan & Logan [2013] FamCAFC 151 at [51].…
Logan & Logan [2013] FamCAFC 151
Citation 17 (Para 7)

…t nature was given: Hoult at [101] and [279]; see Wallace & Stezler [2011] FamCA 54 at [261]; on appeal [2013] FamCAFC 199 at [103] and Logan & Logan [2013] FamCAFC 151 at [51].…
WN Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2
Citation 18 (Para 15)

…FCAFC 19 (18 February 2011) at [122] (Keane CJ): It is well established that the courts strive to uphold bargains: Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; [1932] All ER 494. To that end, the courts will construe the terms of an agreement with an inclination to give effect to the intention of the parties, eve…
FamCAFC 151 and Hoult & Hoult [2013] FAMCAFC 109
Citation 19 (Para 1)

…In Hoult & Hoult [2013] FamCAFC 109, at [60], [62] Thackray J said: [60] In my view, the onus of establishing that an agreement is binding falls upon the party asserting that fact because the legislation provides that an agreement is binding “if, and only, if” the prescribed matters are established. It follows that t…
[2002] 2 NZLR 433 [2002] 2 NZLR 433
Citation 20 (Para 15)

…rder to give efficacy to the bargain, the courts will make the necessary implication: Fletcher Challenge Electricity Corporation of New Zealand [2002] 2 NZLR 433 at [64]-[67]; Moffat Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60.…

Legislation Cited

Family Law Act 1975 (Cth) 4, 71A, 90B, 90B(1)(a), 90B(1)(aa), 90B(...
11 mentions (from Para 2)
Domestic and Family Violence Protection Act 1989 (Qld)
1 mention (from Para 6)
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Property Law Act 1974 (Qld)
1 mention (from Para 7)