Min & Orton - [2022] FedCFamC1F 131

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Min & Orton [2022] FedCFamC1F 131

File number(s): SYC 1579 of 2021

Judgment of: REES J

Date of judgment: 11 March 2022

Catchwords: FAMILY LAW – FINANCIAL AGREEMENT – Application by the husband to rectify a financial agreement – Where the agreement makes reference only to Part VIIIAB and section 90UB of the Family Law Act 1975 (Cth) – Where the husband asserts the agreement was to have effect on the termination of a de facto relationship and on the termination of a subsequent marriage – Issue as to the common intention of the parties at the making of the agreement – Where the husband failed to advance “clear and convincing proof” that the agreement does not embody the final intention of the parties – Application dismissed.

Legislation: Family Law Act 1975 (Cth) ss 90B, 90KA, 90UB, 90UJ(3)

Cases cited:
Graham & Squibb (2019) FLC 93-892

Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336

Pukallus v Cameron (1982) 180 CLR 557

Division: Division 1 First Instance

Number of paragraphs: 55

Date of hearing: 10 March 2022

Place: Sydney

Counsel for the Applicant: Mr Cummings SC

Solicitor for the Applicant: Clinch Long Woodbridge Lawyers

Counsel for the Respondent: Mr Batey

Solicitor for the Respondent: Browns The Family Lawyers
ORDERS

SYC 1579 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ORTON

Applicant

AND:
MS MIN

Respondent

ORDER MADE BY:

REES J

DATE OF ORDER:

11 MARCH 2022

THE COURT ORDERS:
1.That the application for rectification of the agreement executed on 1 August 2013 between the husband and the wife be dismissed.

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 a pseudonym Min & Orton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:

Mr Orton (“the husband”) and Ms Min (“the wife”) entered into a Financial Agreement (“the agreement”) on 1 August 2013. That agreement was expressed to be a “Part VIIIAB Financial Agreement under Section 90UB of the Family Law Act 1975 (Cth)”.
Section 90UB of the Family Law Act 1975 (Cth) (“the Act”) makes provision for parties who contemplate entering into a de facto relationship to enter into a binding financial agreement.
Relevantly, for present purposes, the agreement provided for the…

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 Min & Orton

Details

AGLC: Min & Orton [2022] FedCFamC1F 131
Case: [2022] FedCFamC1F 131
Decision Date

CaseChat Overview and Summary

The husband, Mr Orton, sought to have a financial agreement rectified so that it would refer to both a de facto relationship and a subsequent marriage. The wife, Ms Min, opposed the application. The husband's contention was that the agreement was intended to refer both to the contemplation of a de facto relationship and the contemplation of marriage. The agreement was signed on 1 August 2013, and the parties married in 2014. They separated in 2020. Unless rectified, as the husband seeks, the agreement executed on 1 August 2013 is not, by virtue of the provisions of s 90UJ(3) of the Family Law Act 1975 (Cth), binding and the jurisdiction of the Court to hear and determine the wife's applications is unaffected.

The husband bears the onus of demonstrating that it was the common intention of both of the husband and the wife that the agreement into which they entered was to be operative both in the event of an end to their de facto relationship and also in the event that they married and the marriage ended. The husband gave evidence that he had instructed his solicitor that the agreement was to cover both eventualities. The husband was unable to recall when he had given those instructions and there is no evidence in the solicitor's file to support his assertion. The wife gave evidence that the husband had told her that he did not want to marry her. The solicitor for the husband did not give evidence in these proceedings although his file has been tendered. The wife consulted her solicitor on 20 May 2013. The wife told the solicitor that she and the husband would not be getting married, that she would like to marry but the husband did not want to marry. The solicitor gave evidence that he gave the wife no advice about her rights after marriage because no marriage was in contemplation. Nothing in the wife's solicitor's letter of advice supports the husband's contention that the wife intended to enter into an agreement that contemplated marriage. The husband has not established that, at the time the agreement was executed, he and the wife had "an intention common to both parties at the time of the contract to include in their bargain a term which by mutual mistake is omitted therefrom…".

The husband's application for rectification will be dismissed.

ORDERS

1. That the application for rectification of the agreement executed on 1 August 2013 between the husband and the wife be dismissed.

Orders