FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nagari & Nagari [2023] FedCFamC1F 242
File number(s): PAC 4264 of 2021 Judgment of: RIETHMULLER J Date of judgment: 13 March 2023 Catchwords: FAMILY LAW – PROPERTY – Financial Agreements – Where the parties each signed an alleged financial agreement purporting to deal with their assets in the event of separation – Where the signed document was not “exchanged” by the parties – Declaration that there was no “financial agreement” Legislation: Family Law Act 1975 (Cth) ss 4, 44, 71A, 79, 90G, 90K
Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth) Sch 5
Cases cited: Allen v Carbone (1975) 132 CLR 528; [1975] HCA 14
Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647; [1908] HCA 88
Bridle Estates Pty Ltd v Myer Realty Ltd (1977) 15 ALR 415
Commissioner of Stamp duties (Qld) v Hopkins (1945) 71 CLR 351; [1945] HCA 14
Domb v Isoz [1980] Ch 548
Eccles v Bryant and Pollock [1947] 1 Ch 93
Fevia & Carmel-Fevia (2009) FLC 93-411; [2009] FamCA 816
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407
Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298
Millington & Millington [2007] FamCA 687
Sindel v Geogiou (1984) 154 CLR 661; [1984] HCA 58
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Wallace & Stelzer (2013) FLC 93-566; [2013] FamCAFC 199
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 7-10 March 2023 Place: Parramatta Counsel for the Applicant: Mr Bennett Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Mr Heazlewood Solicitor for the Respondent: Newnhams Solicitors ORDERS
PAC 4264 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NAGARI
Applicant
AND: MR NAGARI
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
13 MARCH 2023
THE COURT DECLARES THAT:
1.There is no “financial agreement” in existence between the applicant and respondent within the meaning of the Family Law Act 1975 (Cth).
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 Nagari & Nagari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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- AGLC
- Nagari & Nagari [2023] FedCFamC1F 242
- Case
- [2023] FedCFamC1F 242
- Decision Date
CaseChat Overview and Summary
The matter of Nagari & Nagari involved a dispute between the wife and husband, with the wife seeking a declaration under section 90G of the Family Law Act 1975 (Cth) that a financial agreement entered into on 8 December 2005 was not binding, or alternatively, that the agreement be set aside under section 90K of the Act. The wife further sought property settlement orders against the husband under section 79 of the Act. The husband, born in 1943, is a citizen of Country C, the United Kingdom, and Australia. The wife, born in 1966, held dual citizenship in Country C and Australia. Both parties had previous marriages, with the husband's first marriage ending in divorce in 2001 and the wife's first husband passing away in 2002. The wife claimed that the husband had informed her of the agreement on the day before their wedding, and she signed a copy of the financial agreement the following day.
The primary legal issues the court had to address were whether the agreement was binding under the Family Law Act 1975 (Cth), and if not, whether it could be set aside under section 90K of the Act or common law or equitable principles. The court also had to determine if there was a valid financial agreement within the meaning of section 71A of the Act, and if not, whether the wife was entitled to property settlement orders under section 79 of the Act. The court examined the credibility of the parties, the wife's English language skills, and the circumstances surrounding the execution of the agreement.
The court found that the wife was not an impressive witness, and her claim that she had poor English language skills was not supported by the evidence. The husband was found to be a credible witness, and his evidence was supported by two witnesses who had employed the wife years after her arrival in Australia. The court rejected the arguments that the agreement should be set aside under section 90K of the Act or upon common law or equitable principles. However, the court found that no formal agreement was reached between the parties, and therefore there was no financial agreement within the meaning of section 71A of the Act. Consequently, the operation of Part VIII (including section 79) of the Act applied to the parties.
The court made a declaration that there was no "financial agreement" in existence between the applicant and the respondent within the meaning of the Family Law Act 1975 (Cth). The court did not make any property settlement orders as there was no financial agreement in existence.
The primary legal issues the court had to address were whether the agreement was binding under the Family Law Act 1975 (Cth), and if not, whether it could be set aside under section 90K of the Act or common law or equitable principles. The court also had to determine if there was a valid financial agreement within the meaning of section 71A of the Act, and if not, whether the wife was entitled to property settlement orders under section 79 of the Act. The court examined the credibility of the parties, the wife's English language skills, and the circumstances surrounding the execution of the agreement.
The court found that the wife was not an impressive witness, and her claim that she had poor English language skills was not supported by the evidence. The husband was found to be a credible witness, and his evidence was supported by two witnesses who had employed the wife years after her arrival in Australia. The court rejected the arguments that the agreement should be set aside under section 90K of the Act or upon common law or equitable principles. However, the court found that no formal agreement was reached between the parties, and therefore there was no financial agreement within the meaning of section 71A of the Act. Consequently, the operation of Part VIII (including section 79) of the Act applied to the parties.
The court made a declaration that there was no "financial agreement" in existence between the applicant and the respondent within the meaning of the Family Law Act 1975 (Cth). The court did not make any property settlement orders as there was no financial agreement in existence.
Orders
Orders of the court
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Background
Background to the litigation
On 13 August 2021, the applicant wife filed an Initiating Application seeking a declaration pursuant to s 90G of the Family Law Act 1975 (Cth) that the agreement entered into between her and the respondent husband on 8 December 2005 is not binding, or alternatively, that the Agreement be set aside a pursuant to s 90K of the Act. Thereafter, the wife seeks property settlement orders against the husband pursuant to s 79 of the Act.BACKGROUND The husband was born in Country C in 1943 and is currently 79 years of age. The husband is a citizen of Country C, the United Kingdom, and Australia. The wife was born in Country C in 1966 and is currently 56 years of age. The wife had dual citizenship in Country C and Australia. In 1975, the husband married his first wife. The husband and his first wife had two children together (born in 1977 and 1978). They were divorced in 2001. No property settlement was formalised between the husband and his first wife, although an informal settlement was reached where she received $400,000 from a property pool of around $1,085,000. Whilst they had attempted to formalise this property settlement in 2002, the terms were rejected by a Registrar of the Family Court of Australia on the basis that the terms were not “just and equitable”. However, by a seemingly miraculous coincidence, in the weeks prior to this trial, the husband’s first wife filed an application seeking leave pursuant to s 44(3) of the Act to bring property settlement proceedings that were around 20 years out of time. The husband consented to the wife pursuing property settlement proceedings pursuant to s 44(3), and as such, the bar in s 44 of the Act no longer operated. The husband and his first wife then promptly settled the proceedings between them on the basis that he would pay her $1,200,000 within 60 days. Consent orders between the husband and his first wife were made after the wife in the present proceedings was afforded an opportunity to make submissions, although no submissions were made against the terms of the consent orders. The wife had also been married previously, and she and her first husband had two children (born 1986 and 1987). In early 2002, the wife’s children moved to Australia to finish their schooling where she occasionally visited them (holding a multi-entry visa to Australia), but she otherwise remained living in Country C. The wife’s first husband passed away in 2002. Thus by 2003, both the husband and wife were no longer married to their former spouses, and each engaged the services of a matchmaker to find a new spouse. In 2005, the wife travelled to Australia with her parents to visit her adult children. In around mid-2005, the wife’s family informed the wife that the husband had proposed to marry her, and they met for the first time in late 2005. Shortly after, the parties set a date to be married in late 2005, and the wife’s move to Australia became effectively permanent. In late 2005, a short time before their wedding, the wife says that the husband informed her that he had organised an appointment for her to sign a document. On the wife’s case, the following day, the parties met with Ms B, a solicitor (the wife’s advising solicitor). At that meeting, the wife signed a copy of the financial agreement the subject of the application.
Evidence
Evidence Before The Court
The wife’s presentation in the witness box was at other times not terribly responsive to questions. She relied upon the interpreter heavily, but at times quickly responded in English without the need for an interpretation. I did not find the wife an impressive witness in the witness box, even making considerable allowances for her giving evidence in large part through an interpreter.The husband’s evidence The husband is an elderly man. Whilst he has had a medical condition, he presents quite normally, although he pointed out that the medical condition has impacted his short term memory somewhat. Whilst his speech was a little slower than the average person, it did not appear outside of the norm for a man of his age. He was calm and generally responsive in the witness box. The only issue that impacts upon his credibility concerns a City S property. It appears that he leased the property to lessees for approximately 120 years in around 1985. He said that he had since sold the lease, as it was returning only a very small amount of money per year. However, the City S property was dealt with in a will that the wife found among the husband’s belongings. Exactly what occurred with respect to this City S property is far from clear, and the wife did not have a full search of the relevant title register (only an extract that was not sufficient to enable any clear inference to be drawn). I am not persuaded that on the evidence before me at present that this matter is significant to the husband’s credit generally. I found him an impressive witness and generally accept his evidence. The husband called two witnesses, both of whom had employed the wife years after her coming to Australia. Their evidence as to the wife’s English-language skills was starkly different to the wife’s presentation in Court. The first witness, Ms Q, had engaged the wife to work with her in a business in order to do the administration work, such as answer the telephones. Whilst Ms Q was cross-examined as to whether her memory may have changed over the years as the wife’s language improved, she was adamant that the wife’s English was excellent when she first met her. She described the wife’s English as excellent, and that the wife personal presentation was also excellent which led her to hire the wife. The second witness called by the husband, Ms Q’s father, also engaged the wife in undertaking work for an organisation that he runs. His description of the wife was in glowing terms as to her capacity to speak English and undertake administrative tasks within the organisation. Notably, when asked if her English had improved, he pointed out that there was no need for her to improve as she spoke English very well from the outset. I found both witnesses impressive and credible. Given the nature of the work that the wife was undertaking for each Ms Q and Mr R from early days, albeit sometime after the relevant attendance upon her advising solicitor in December 2005, I am not persuaded that I should discount their evidence on the basis that the wife’s language skills may have improved over the time they knew her. Indeed, the wife’s language skills as presented in the witness box would still not have been nearly sufficient to undertake the tasks that she performed when working with each of the two witnesses. I am comfortably satisfied that the wife did have good English language skills, sufficient to gain employment in an administrative role, including answering telephone queries, taking messages and drafting letters, and that her presentation in court as a person unable to speak English (or largely unable to speak English) was not a realistic representation of her skills.
Decision
Reasons for decision
I therefore reject the arguments that any agreement would be set aside pursuant to s 90K of the Act, or upon common law or equitable principles.CONCLUSION In this case Counsel for the husband has managed to overcome a great many difficulties that confronted the husband’s case as a result of these poorly drawn and strangely executed documents. However, for the reasons set out above, I am not persuaded that a formal agreement was actually reached between the parties, and therefore there is no financial agreement within the meaning of s 71A of the Act, and thus the operation of Part VIII (including s 79) of the Act applies to the parties. I therefore make a declaration that there is no “financial agreement” in existence between the applicant and the respondent within the meaning of the Family Law Act 1975 (Cth).
Ratio Decidendi
Legal Principle Established
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