Parker and Parker - [2009] FamCA 1381

FAMILY COURT OF AUSTRALIA

PARKER & PARKER

[2009] FamCA 1381

FAMILY LAW – PRACTICE AND PROCEDURE – FINANCIAL AGREEMENT – where the wife sought to have a financial agreement set aside – where judgment was ready to be delivered – oral application by the husband seeking to re-open the trial in light of the amendments introduced by the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 commencing on 4 January 2010 – where the amendments address technical issues arising from the decision of Black and Black (2008) FLC 93-357 – where there is certainty as to the commencement and form of the amendments – where the amendments are to apply retrospectively – where the amending legislation is highly relevant to the wife’s claim – application granted – proceedings adjourned to allow further submissions

Family Law Act 1975 (Cth) ss 79(5), 90C & 90G
Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth)

Black and Black (2008) FLC 93-357
Meggitt Overseas Limited (now known as Wallaby Grip Limited) & Ors v Grdovic [1998] NSW SC 233
Ruane & Bachmann-Ruane [2009] FamCA 1100
Taylor & Taylor [2001] FamCA 866
Willow Wren Carrying Co Limited v British Transport Commission [1956] 1 WLR 213

APPLICANT:

Ms Parker

RESPONDENT:

Mr Parker

FILE NUMBER:

ADC

502

2008

DATE DELIVERED:

31 December 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

31 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berman

SOLICITOR FOR THE APPLICANT:

Mark Esau

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

David M Davidson

Orders

That these proceedings be adjourned for further consideration to 9:00am on 18 January 2010 for the purposes of listing the matter for further submissions as a result of the commencement of the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 on 4 January 2010.
That the costs of both parties of and incidental to the hearing be reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 502 OF 2008

MS PARKER

Applicant

And

MR PARKER

Respondent

EX TEMPORE REASONS

Today I have before me an application filed by the husband on 21 December 2009 in which he seeks orders, firstly:
That the trial of the wife's application before the court be re‑opened and be re‑argued having regard to the amendments of the Family Law Act taking effect on 4 January 2010.
and secondly:
Such further or other order as this honourable court deems just and equitable.
That application is opposed by the wife. It was an application brought consequent upon the husband's counsel making an oral application to the same effect at the time when I was about to deliver judgment in this matter in relation to an application filed by the wife on 3 March 2009, in which she sought that a financial agreement entered into between the parties pursuant to s 90C of the Family Law Act 1975 be set aside. That application was an application that was opposed by the husband at the time and was heard by me on 16 September 2009 when I reserved my judgment. As I say, I was about to deliver that judgment on 21 December 2009 when the husband, through his counsel, made the oral application that I have just referred to.
Because of the way the application has been brought before the Court and the timeframe involved, I do not propose to deliver lengthy reasons.
The basis of the adjournment is the fact that there is amending legislation due to commence on 4 January 2010, and the legislation is the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009. That is an Act which has passed both houses of Parliament, obviously, and received the Royal Assent on 7 December 2009, and will commence on 4 January 2010.
That amending legislation is, to put it briefly, intended to address issues that arise from a Full Court decision of this court of Black and Black (2008) FLC 93-357, and the legislation is retrospective in that it applies to all financial agreements entered into since December 2000.
The relevance of the amending legislation is that part at least, and certainly to my mind a significant part, of the wife's case in the matter that I have heard was based on the Full Court decision of Black and Black. Mr Berman has reminded me today that it wasn't wholly based on the effect of that decision, and I accept that but, as I say, in my view, and Mr Berman does not say otherwise, there was certainly, he says, an aspect, I say a significant aspect, of the case based on that decision.
In summary, s 90G of the Family Law Act provides that a financial agreement is binding on the parties if and only if, inter alia, the agreement contains a statement to the effect that the party to whom the statement relates has been provided with independent legal advice as to certain matters (s 90G(1)(b)), and there is an annexure to the agreement containing a certificate signed by the person providing the advice stating that the advice was provided (s 90G(1)(c)).
In this case one of the principal bases of the wife’s claim was that these requirements were not complied with, and given that in Black and Black the Full Court held that strict compliance with the statutory requirements was required to oust the jurisdiction of the court, the non-compliance here was fatal and the agreement was not binding.
The amending legislation though repeals paragraphs 90G(1)(b) and (c) and substitutes a requirement that legal advice be provided before each party signs the agreement (s 90G(1)(b)) and a requirement that a statement is provided stating that the advice has been given (s 90G(1)(c)). Further, a new s 90G(1A) provides that if these requirements are not satisfied then the agreement can still be binding if a court is satisfied that it would be unjust and inequitable if the agreement were not binding (s 90G(1A)(c)).
Thus it can be seen that under the amending legislation there would be a different focus in this case if it was reopened and heard under that legislation.
The issue for the Court to decide today is whether that is what should now happen or whether the case should be finalised under the still existing legislation.
There is no doubt, as Mr Berman submits, that there is nothing in the amending legislation which would prevent the Court from delivering reasons for judgment and making orders on the basis of the law as it still stands, and he urges me to do that. On the other hand, Mr Jordan urges me to exercise my discretion and adjourn the case until after the commencement of the amending legislation.
There are a number of authorities to which I have been referred by both counsel, and the majority of those authorities are conveniently captured in a recent decision of Ruane & Bachmann-Ruane [2009] FamCA 1100 involving the same legislation that I am now considering. That was a decision of Cronin J delivered on 20 November 2009 where his Honour determined an application in effect to delay the delivery of judgment until the proposed legislation had become law and then reopen the case.
His Honour dismissed the application relying on the general principle emanating from the relevant authorities that it is not appropriate to adjourn a matter on account of the possibility that the law may change in the future. His Honour referred for example to the case of Willow Wren Carrying Co Limited v British Transport Commission [1956] 1 WLR 213 where Upjohn J declined a stay of the proceedings saying:
… I cannot take into account the possible effect of some Bill now before Parliament which, if passed into law in its present form, may have some effect upon the rights of the parties.
His Honour then said:
… It is a matter of speculation on which this court will not embark as to whether a Bill at present before Parliament will be passed into law in its present form.
Then there is the Court of Appeal decision of Meggitt Overseas Limited (now known as Wallaby Grip Limited) & Ors v Grdovic [1998] NSW SC 233. Cronin J summarised that case in this way:
42.Meggitt Overseas Limited (now known as Wallaby Grip Limited) and Ors v Grdovic arose out of an action before the Dust Diseases Tribunal. The case has been set down for hearing. The time between set down and hearing was seven months. In the intervening period, the plaintiff asked for his hearing to be vacated because of proposed legislative changes that had been announced. His application was granted over objection. In the Court of Appeal, Mason P noted the adjournment power was discretionary and an appellate court should be reluctant to interfere. However, one reason for such interference was where the discretion was exercised on wrong principle.
43.Mason P examined the summary of the proposed legislation which appeared in a ministerial statement and noted that there was no indication when the legislation would be introduced nor was there any indication of retrospectivity.
44.The Court of Appeal held that the discretion of the trial judge miscarried because he took into account the prospect of legislative amendment as a basis for the decision. Mason P with whom the other members of the Court agreed said that the error was compounded by deliberately adjourning until the legislation was passed. His Honour made clear that it is not proper to take into account impending legislation change in support of a contested adjournment… [Footnotes omitted]
In the family law context this issue has arisen in relation to the introduction of the superannuation amendments and adjournments under s 79(5) of the Act. The leading case is the Full Court decision of Van Essen & Van Essen (2000) FLC 93-028. There it was held that it was not appropriate to adjourn proceedings pursuant to s 79(5) on account of proposed legislation which at the time of the hearing at first instance had not even been introduced into Parliament. By the time of the hearing of the appeal a Bill had been introduced, and it had been debated, but it had not passed. The Full Court was concerned that it was uncertain whether the proposed legislation would be passed and it was also still unclear as to the final form of the legislation.
However, these cases and the case of Ruane & Bachmann-Ruane (supra) are all distinguishable from the case at Bar. Here the amending legislation has passed and it is about to commence. There is no uncertainty either about its commencement or its form. Indeed, that was the basis on which I held in the case of Taylor & Taylor [2001] FamCA 866 that the principles identified in Van Essen did not apply, namely because at that time the legislation had passed and there was certainty as to its commencement.
In my view, this circumstance, namely the certainty of the commencement and of the form of the legislation, allow the Court to have regard to that legislation in determining the application to adjourn and reopen.
It is also relevant in my view that the amending legislation is retrospective and that it addresses technical issues that have caused injustice as opposed to altering substantive rights. These aspects also support the granting of the application to adjourn and reopen the proceedings.
Of course though to adjourn proceedings is an exercise of discretion and Mr Berman has correctly raised issues of delay and prejudice to his client. In relation to delay Mr Berman points out that the proceedings commenced in February 2008 and no aspect of the two year delay to get to this point can be sheeted home to the wife. There is also the circumstance that the husband only made his application to adjourn at the eleventh hour, namely when I was about to deliver my reasons for judgment. As to these arguments Mr Jordan says that although the husband has been responsible for some of the delay up to the initial hearing on 16 September 2009 that does not bear upon the issue at hand, and I agree with that submission. As to the lateness of the application to adjourn Mr Jordan says that given the state of the authorities there was no point in applying prior to the passage of the legislation through Parliament, but clearly his client can be criticised for not bringing the application at that time, namely on 23 November 2009. However, Mr Jordan says that the interests of justice should nevertheless lead to the granting of the application.
In relation to prejudice, Mr Berman says that the wife is entitled to have the case determined on the basis of the law that is in existence at the time of the hearing. In normal circumstances that would be correct, but the situation here is that amending legislation is about to commence which is highly relevant to the wife’s claim and how the case should be decided.
I can say that I am sympathetic to the wife’s position in view of the delay, the effect of that, and the prejudice that she may suffer, and of course it is also relevant that if the case is adjourned then there will be a further delay in the finalisation of the proceedings. Nevertheless, given the circumstances I consider that the interests of justice require me to grant the application.

I certify that the preceding 22 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 31 December 2009.

Associate