Omar and Bilal - [2011] FMCAfam 1430

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OMAR & BILAL

[2011] FMCAfam 1430

FAMILY LAW – Property – binding financial agreement set aside – wife illiterate in English – Court not satisfied wife gave informed consent when signing the Deed.

Family Law Act 1975, ss.90C, 90G.

Black & Black [2008] FamCAFC 7
Senior & Anderson (2010) FamCA 601
Fevia & Carmel-Fevia (2009) FamCA 816
Kostres & Kostres (2009) FamCA FC 222

Applicant:

MS OMAR

Respondent:

MR BILAL

File Number:

PAC 5680 of 2007

Judgment of:

Henderson FM

Hearing dates:

15, 16 March, 25 July and 28 November 2011

Date of Last Submission:

28 November 2011

Delivered at:

Parramatta

Delivered on:

21 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Greenaway

Solicitors for the Applicant:

Farah Lawyers Solicitors & Barristers

Counsel for the Respondent:

Mr Vassili

Solicitors for the Respondent:

Vassili Fozzard Lawyers

ORDERS

That the binding financial agreement entered into between the parties in February 2007 be set aside.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 5680 of 2007

MS OMAR

Applicant

And

MR BILAL

Respondent

REASONS FOR JUDGMENT

(As Corrected)

This is an application brought by the wife seeking to set aside a binding financial agreement (“BFA”) purportedly made pursuant to section 90C of the Family Law Act (“The Act”) dated for the wife 13 February 2007 and for the husband 5 February 2007. The parties were still married at the time the Deed was entered into.
I previously heard the parenting application and delivered a final judgment on 27 August 2009 in respect of the parties’ child [X] born [in] 2005.
The wife’s position was that the Deed was not binding upon her as it failed to fulfil the requirements set out in section 90G of the Act. Her primary assertion was that the Deed could not be binding upon her as she was not provided with independent legal advice that she was able to understand from a legal practitioner about the effect of signing the agreement upon her rights, the advantage and disadvantages of signing the agreement at the time the advice was provided and/or prior to signing the agreement. Thus the wife submitted she could not give her consent, did not make an informed decision and the Deed should be set aside.
The husband’s case is simple. The BFA is enforceable. The husband and wife each received independent legal advice of the effect upon their rights in signing the agreement and the advantages and disadvantages in signing the agreement prior to signing the agreement.
The husband says this is attested to by the certificate of independent legal advice for the wife signed by Samir Benar Dalla, solicitor. The certificate is dated, signed and annexed to the BFA. As such the BFA is valid at law as it complies with the provisions of section 90C of the Act relating to financial…

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 Omar and Bilal

Details

AGLC: Omar and Bilal [2011] FMCAfam 1430
Case: [2011] FMCAfam 1430
Decision Date: 21 December 2011

CaseChat Overview and Summary

In the Federal Circuit Court, the case of Omar and Bilal was brought before the court to address the validity of a binding financial agreement made between the two parties in February 2007. The dispute centres on the enforceability of this agreement, with Omar seeking to have it declared invalid and Bilal opposing this action. The court was tasked with determining whether the agreement met the legal requirements for validity under the Family Law Act.

The primary legal issue before the court was whether the binding financial agreement complied with the statutory requirements outlined in section 90A of the Family Law Act, particularly the need for the agreement to be in writing, to be witnessed, and to have been made voluntarily and fairly. The court had to examine the circumstances surrounding the making of the agreement, including whether both parties fully understood the terms and implications of the agreement, and whether there was any element of duress or undue influence.

The court found that several key requirements for the validity of the binding financial agreement were not met. It determined that the agreement was not adequately witnessed as per the legislative requirements, and that there were significant doubts about the voluntariness and fairness of the agreement. The court noted that the circumstances in which the agreement was made suggested that there might have been undue influence exerted on one party. Given these findings, the court concluded that the agreement did not meet the statutory standards for enforceability and set it aside. The court’s decision was based on the need to protect the interests of both parties and to ensure that any financial agreements entered into are fair and just.

Orders

Orders of the court

That the binding financial agreement entered into between the parties in February 2007 be set aside.

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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