OBANDA & PAGANO - [2018] FCCA 877

FEDERAL CIRCUIT COURT OF AUSTRALIA

OBANDA & PAGANO

[2018] FCCA 877

Catchwords:
FAMILY LAW – Property – application to proceed out of time – Held application dismissed.

Legislation:

Family Law Act 1975, s.44

Cases cited:

Sharp & Sharp [2011] FamCAFC 150
Whitford & Whitford (1979) FLC 90-612
Hall & Hall (1979) FLC 90-679
Althaus & Althaus (1982) FLC 91-233
Hedley & Hedley [2009] Fam CAFC 179
Richardson & Richardson [2008] FamCAFC 107
McDonald & McDonald (1977) FLC 90-317
Gallo v Dawson [1990] 93 ALR 479
Tamaniego & Tamaniego [2010] FamCAFC 254
Ramadam v Leda Holdings [2001] NSWCA 41
McLean v Sydney Water Corporation [2001] NSWCA 122
Frost & Nicholson (1981) FLC 91-051
Slocomb & Hedgewood [2015] FamCAFC 219

Applicant:

MS OBANDA

Respondent:

MR PAGANO

File Number:

BRC 12536 of 2017

Judgment of:

Judge L. Turner

Hearing date:

27 March 2018

Date of Last Submission:

27 March 2018

Delivered at:

Brisbane

Delivered on:

17 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr Glenday

Solicitors for the Applicant:

Alexander Law

Counsel for the Respondent:

Mr Trewavas

Solicitors for the Respondent:

Wellners Lawyers

FINAL ORDERS

That the applicant de facto wife’s application pursuant to section 90SM Family Law Act 1975 to proceed out of time and apply after the end of the standard application period pursuant to s44(6) Family Law Act 1975 is unsuccessful and is hereby dismissed.
That otherwise all outstanding applications are hereby dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 12536 of 2017

MS OBANDA

Applicant

And

MR PAGANO

Respondent

REASONS FOR JUDGMENT

Introduction

The parties were in a de facto relationship that commenced in 2007 and ended in December 2014.
Subsequently, the applicant de facto wife (wife) filed financial proceedings in November 2017; nearly three years later.

Proposals

The wife is now seeking leave to proceed out of time.
The respondent de facto husband (husband) objects to the leave being granted and is seeking for the wife’s application to be dismissed.

Issue

The issue then requiring determination is whether the court should grant leave for the wife’s application to proceed out of time.

Evidence

In considering this issue regard has been had to:-
a)The material as marked on the court file.
b)The written submissions of the parties.
c)The exhibits.
d)Section 44 Family Law Act 1975 and other relevant sections.
e)Relevant authorities.
Both parties are legally represented.
Cross examination did not occur.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.

Relevant history

Before considering the law it is necessary to capture the relevant history:-
a)The wife is aged 37 and moved from (country omitted) to Australia in 2002 and works in (employment omitted).
b)The husband is aged 47 and is a (occupation omitted).
c)In 2007 the parties commenced cohabitation.
d)At the time of cohabitation…

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: OBANDA & PAGANO [2018] FCCA 877
Case: [2018] FCCA 877
Decision Date: 17 April 2018

CaseChat Overview and Summary

In the matter of *Obanda & Pagano*, L. Turner J of the Supreme Court of Victoria considered a dispute concerning the interpretation and enforceability of a settlement agreement. The parties, Obanda and Pagano, had entered into a settlement agreement to resolve prior litigation. However, a disagreement arose regarding the precise obligations and entitlements arising from that agreement, leading to the present proceedings.

The central legal issue before the Court was whether the settlement agreement, as drafted, constituted a binding and enforceable contract, and if so, what were the respective rights and obligations of Obanda and Pagano under its terms. Specifically, the Court had to determine if there was a mutual intention to create legal relations and if the terms of the agreement were sufficiently certain to be enforced by the Court.

L. Turner J's reasoning focused on established principles of contract law. The Court examined the language of the settlement agreement, considering the ordinary meaning of the words used and the context in which they were employed. The judge applied the test for contractual intention, looking for evidence that the parties intended their agreement to have legal consequences. Furthermore, the Court assessed the certainty of the terms, considering whether the essential elements of the bargain were clearly defined. The judge concluded that the settlement agreement was a valid and binding contract and proceeded to interpret its provisions to determine the parties' obligations. The Court made orders reflecting its interpretation of the settlement agreement.

Orders