Pagani & Pagani - [2023] FedCFamC2F 805

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pagani & Pagani [2023] FedCFamC2F 805

File number(s): PAC 6933 of 2021

Judgment of: JUDGE MYERS

Date of judgment: 30 June 2023

Catchwords:
FAMILY LAW – Property Proceedings - Threshold Hearing– Binding Financial Agreement – Binding Financial Agreement Set Aside.

FAMILY LAW – LEGAL PRACTITIONERS – solicitors falsely witnessing Agreement.

Legislation:
Family Law Act 1975 (Cth), ss 71A, 79, 90B, 90G(1)(b)(c)(1A), 90K(1)(a)(b), 90KA, 90UJ, Part VIII, Part VIIIA,

Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009,

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules (2015), rr 4.1.3. 30.1.

Cases cited:
Abrum & Abrum [2013] FamCA 897 [40]

Black & Black [2006] FamCA 972 [110]

Black & Black [2008] FamCAFC 7 [45]

CGU Insurance Limited v AMP Financial Planning Pty Ltd [2007] HCA 36 [257]

J & J (2006) FamCA 442 [19], [20]

Kaimal & Kaimal [2020] FamCA 971 [16], [17]

NSW Legal Services Commissioner v Zou [2021] NSWCATOD 139 [72], [73]

Stanford v Stanford [2012] HCA 52 [41]

Division: Division 2 Family Law

Number of paragraphs: 59

Date of last submission/s: 22 February 2023

Date of hearing: 2 & 22 February 2023

Counsel for the Applicant: Mr Othen

Solicitor for the Applicant: Coleman Greig Lawyers

Counsel for the Respondent: Mr Ahmad

Solicitor for the Respondent: Broun Abrahams Burreket
ORDERS

PAC 6933 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PAGANI

Applicant

AND:
MR PAGANI

Respondent

order made by:

JUDGE MYERS

DATE OF ORDER:

30 JUNE 2023

THE COURT ORDERS THAT:
1.The Court finds and declares the Agreement between the parties partially dated June 2011 is not binding on the parties and the Agreement is set aside.

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 Pagani & Pagani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MYERS J:

This is an interlocutory decision in threshold proceedings between the Applicant Wife, Ms Pagani (‘the Wife’) and the Respondent Husband, Mr Pagani (‘the Husband’).
The Wife seeks orders in accordance with her Amended Initiating Application filed 24 October 2022, that provides:
(1)Declaration that an agreement executed on or about June 2011 (‘the Agreement’) made between the parties under section 90B of the Family Law Act 1975 (Cth) (‘the Act’) is binding. The Wife also…

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 Pagani & Pagani

Details

AGLC: Pagani & Pagani [2023] FedCFamC2F 805
Case: [2023] FedCFamC2F 805
Decision Date

CaseChat Overview and Summary

The matter before the Court was a threshold application by the Wife, Ms Pagani, seeking a declaration that a Binding Financial Agreement (BFA) executed by the parties in or about June 2011 was binding. The Husband, Mr Pagani, sought to have the Agreement set aside. The Court was required to decide whether the Agreement was compliant with section 90G(1) of the Family Law Act 1975 (Cth) and, if not, whether it should be declared binding under section 90G(1A). The Court also needed to determine whether the Agreement should be set aside on other grounds, including uncertainty, abandonment, and non-disclosure of a material matter.

The Court found that the Agreement was not compliant with section 90G(1) because the Husband did not receive independent legal advice as required by section 90G(1)(b). The Court held that the requirement for legal advice is an important legislative safeguard and must be strictly complied with. The Court further found that it would be unjust and inequitable to declare the Agreement binding under section 90G(1A) due to the Wife's lack of clean hands. The Court held that the Wife and her solicitor had acted in a manner that was less than competent and diligent, and had taken unfair advantage of the Husband's position. The circumstances of the execution of the Agreement by the parties and their solicitors were found to be diabolical, and the Wife did not come to the Court seeking equity with clean hands.

The Court set aside the Agreement and made the following orders:

1. The Court finds and declares the Agreement between the parties partially dated June 2011 is not binding on the parties and the Agreement is set aside.

This decision highlights the importance of strict compliance with the requirements of section 90G of the Family Law Act, including the requirement for independent legal advice. The Court also emphasised the application of the clean hands doctrine in determining whether it would be unjust and inequitable not to declare an agreement binding.

Orders