Norton and Norton

Case [2009] FamCA 359


FAMILY COURT OF AUSTRALIA

NORTON & NORTON [2009] FamCA 359
FAMILY LAW – PROPERTY – Whether financial agreement valid
Family Law Act 1975 (Cth)
Black and Black (2008) FLC 93-357
J and J [2006] FamCA 442
Meggitt Overseas Limited and Ors v Grdovic (1998) 43 NSWLR 527
Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Limited (1935) 54 CLR 230 at 253
APPLICANT: Ms Norton
RESPONDENT: Mr Norton
INDEPENDENT CHILDREN’S LAWYER:
FILE NUMBER: DGC 2718 of 2007
DATE DELIVERED: 8 May 2009
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN
HEARING DATE: 14 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR WILSON
SOLICITOR FOR THE APPLICANT: RYAN CARLISLE THOMAS
THE RESPONDENT: IN PERSON
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS DELLIDIS
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SEPTIMUS JONES & LEE

Orders

IT IS DECLARED

  1. That the financial agreement executed by the parties and dated 30 June 2003 is not a financial agreement for the purposes of Part VIII of the Family Law Act 1975 (Cth) (“the Act”) and the provisions of s 71A of the Act do not apply.

IT IS ORDERED:

  1. That all outstanding applications be adjourned for final hearing before Justice Monteith as the first case (as at this time) in the list of defended matters for the period of five days commencing on 17 August 2009 at 10.00am as a three day matter.

  2. That the matter be listed for mention before me at 9.00am on 7 August 2009.

  3. That unless otherwise impracticable Registrar Kaur be appointed as the docketed registrar responsible for the management of the case.

  4. That by 4 pm on 13 July 2009 the applicant file:

    (a)an amended application setting out with precision the orders to be sought;

    (b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day; and

    (c)a financial statement that complies with chapter 13 of the Family Law Rules.

  5. That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 13 July 2009.

  6. That by 4 pm on 27 July 2009 the respondent file:

    (a)    an amended response setting out with precision what orders are being sought;

    (b)    the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day;

    (c)    a financial statement that complies with chapter 13 of the Family Law Rules.

  7. That by 4 pm on 3 August 2009 the Independent Children’s Lawyer file and serve upon all other parties, the affidavit material relied upon.

  8. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

  9. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

    (a)If both parties are in default, be at liberty to move…

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Norton and Norton [2009] FamCA 359
Case
[2009] FamCA 359
Decision Date

CaseChat Overview and Summary

In the matter of *Norton and Norton*, heard before Justice Cronin, the parties disputed the validity of a financial agreement executed on 30 June 2003. The court was required to determine whether this agreement constituted a financial agreement for the purposes of Part VIII of the *Family Law Act 1975* (Cth) and, consequently, whether section 71A of the Act applied.

The court declared that the financial agreement dated 30 June 2003 was not a financial agreement for the purposes of Part VIII of the *Family Law Act 1975* (Cth), and therefore, the provisions of section 71A of the Act did not apply. Following this declaration, the court made various orders concerning the adjournment of outstanding applications for a final hearing, the appointment of a docketed registrar for case management, and detailed directions for the filing of amended applications, affidavits of evidence, and financial statements by the applicant and respondent. Further orders stipulated the filing of material by the Independent Children’s Lawyer, the payment of trial fees, and the electronic filing of specific documents by practitioners prior to the hearing. The court also noted that the allocated place in the defended list might change and advised parties to monitor its progress.

Orders

Orders of the court

IT IS DECLARED

1.

That the financial agreement executed by the parties and dated 30 June 2003 is not a financial agreement for the purposes of Part VIII of the Family Law Act 1975 (Cth) (“the Act”) and the provisions of s 71A of the Act do not apply.

IT IS ORDERED:

2.

That all outstanding applications be adjourned for final hearing before Justice Monteith as the first case (as at this time) in the list of defended matters for the period of five days commencing on 17 August 2009 at 10.00am as a three day matter.

3.

That the matter be listed for mention before me at 9.00am on 7 August 2009.

4.

That unless otherwise impracticable Registrar Kaur be appointed as the docketed registrar responsible for the management of the case.

5.

That by 4 pm on 13 July 2009 the applicant file:

(a) an amended application setting out with precision the orders to be sought;

(b) the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day; and

(c) a financial statement that complies with chapter 13 of the Family Law Rules.

6.

That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 13 July 2009.

7.

That by 4 pm on 27 July 2009 the respondent file:

(a) an amended response setting out with precision what orders are being sought;

(b) the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day;

(c) a financial statement that complies with chapter 13 of the Family Law Rules.

8.

That by 4 pm on 3 August 2009 the Independent Children’s Lawyer file and serve upon all other parties, the affidavit material relied upon.

9.

That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

10.

Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

(a) If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

(b) refer the case to the trial judge for directions as to its future management; or

(c) if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

(d) return the case to the Registrar’s docket on a date to be fixed for further management

AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

11.

That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 13 August 2009 the following:

(a) a concise set of orders to be sought if different from those already filed;

(b) a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

(c) a list of assets and liabilities; and

(d) a bullet-point summary of argument in relation to the issues in dispute.

12.

That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

AND THE COURT NOTES

A. That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

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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