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Parker & Parker

Parker & Parker

Case [2010] FamCA 664 3 August 2010

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FAMILY COURT OF AUSTRALIA

PARKER & PARKER

[2010] FamCA 664

FAMILY LAW – PROPERTY – FINANCIAL AGREEMENT – application by the wife seeking to have a financial agreement set aside on the basis that it does not comply with the provisions of s 90G of the Family Law Act 1975 (Cth) – where amendments were made to the financial agreement by the husband’s solicitor after the wife had signed the agreement – where the wife initialled the amendments – where no change was made to the certificate provided by the wife’s solicitor – whether each party was provided with independent legal advice as required by s 90G(1)(b) – whether the agreement is binding pursuant to s 90G(1A) – consideration of the meaning of “unjust and inequitable if the agreement were not binding” in s 90G(1A)(c) – declaration that the financial agreement between the parties is not binding within the meaning of the Family Law Act

Family Law Act 1975 (Cth) ss 4, 71A, 79, 90C, 90G, 90K & 90KA
Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) Schedule 5, Part 1 item 8
Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008 (Cth)

Australasian Performing Right Association Ltd v Austrama Television Pty Ltd [1972] 2 NSWLR 467
Black and Black (2008) FLC 93-357
Fevia & Carmel–Fevia (2009) FLC 93-411
Issa v Berisha [1981] 1 NSWLR 261
Kostres & Kostres (2009) FLC 93-420
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Pukallus v Cameron (1982) 180 CLR 447
Ruane & Bachmann-Ruane and Anor [2009] FamCA 1101
Ruzic & Ruzic [2007] FamCA 473
Ryledar Pty Ltd & Anor v Euphoric Pty Ltd (2007) 69 NSWLR 603

APPLICANT:

Ms Parker

RESPONDENT:

Mr Parker

FILE NUMBER:

ADC

502

2008

DATE DELIVERED:

3 August 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

16 September 2009

21 December 2009
31 December 2009
21 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berman

SOLICITOR FOR THE APPLICANT:

Mark Esau

COUNSEL FOR THE RESPONDENT:

Mr Heinrich & Mr Jordan

SOLICITOR FOR THE RESPONDENT:

David M Davidson

Orders

It be declared that the financial agreement between the applicant and the respondent dated 11 November 2004 is not binding within the meaning of the Family Law Act 1975.

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 ADELAIDE

FILE NUMBER: ADC 502 OF 2008

MS PARKER

Applicant

And

MR PARKER

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an Amended Application for Final Orders filed by the wife on 3 March 2009 in which she seeks, inter alia, that a financial agreement entered into between the husband and the wife pursuant to s 90C of the Family Law Act1975 (Cth) (‘the Act’) be set aside.
The wife seeks that this agreement be set aside on the basis that it does…

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 Parker & Parker

Details

AGLC: Parker & Parker [2010] FamCA 664
Case: [2010] FamCA 664
Decision Date: 3 August 2010

CaseChat Overview and Summary

In *Parker & Parker*, Strickland J of the Family Court of Australia considered the validity of a financial agreement entered into between the applicant and the respondent on 11 November 2004. The dispute concerned whether this agreement was binding under the *Family Law Act 1975* (Cth).

The central legal issue before the court was whether the financial agreement met the requirements of s 90C of the *Family Law Act 1975* to be considered a binding financial agreement. Specifically, the court had to determine if the agreement was made in accordance with the prescribed formalities, including the provision of independent legal advice to both parties prior to its execution.

Strickland J reasoned that for a financial agreement to be binding under s 90C, it must be signed by both parties and, crucially, each party must have received independent legal advice from a solicitor regarding their rights and obligations under the agreement, or had the opportunity to obtain such advice. In this instance, the court found that the applicant had not received the requisite independent legal advice as contemplated by the Act. Consequently, the agreement failed to satisfy the statutory requirements for a binding financial agreement.

The court declared that the financial agreement between the applicant and the respondent dated 11 November 2004 was not binding within the meaning of the *Family Law Act 1975*.

Orders

Orders of the court

It be declared that the financial agreement between the applicant and the respondent dated 11 November 2004 is not binding within the meaning of the Family Law Act 1975.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Parker & Parker [2010] FamCA 664

Most Recent Citation

Sawyer and Sawyer [2011] FMCAfam 610

Cases citing this decision · 9 of 9 shown

Dragomirov & Dragomirov
[2024] FedCFamC1A 187 Para 6

…Ruane & Bachmann-Ruane & Anor [2009] FamCA 1101 per Cronin J at [76] (pre amendments), since cited with approval (post amendments) in Parker & Parker [2010] FamCA 664 per Strickland J at [116] and other judgements. 136 Notwithstanding the existence of a certificate, the Court may find that no advice was given at al…
Whittle & Whittle
[2023] FedCFamC1F 771 Para 31

…able when determining whether the agreement should bind the parties, s 90G(1A)(c) would have been worded differently. [4] Parker & Parker [2010] FamCA 664; (2010) 43 Fam LR 548.…
DAILY & DAILY
[2020] FamCA 486 Para 1

…In Parker & Parker [2010] FamCA 664 ( Parker ), a husband and wife entered into a financial agreement pursuant to s 90C of the Act. The wife sought that the agreement be set aside on the basis that it did not comply with s 90G of the Act, although Strickland J correctly found that the proper application was not to…
Logan and Logan
[2012] FMCAfam 12 Para 8

…ner to provide any legal advice at all was not a technical breach of s.90G(1)(b) [15] Fevia & Carmel-Fevia (2009) FLC 93-411 [16] Parker & Parker [2010] FamCA 664…
SENIOR & ANDERSON
[2011] FamCA 802 Para 11

…ot binding”, I consider it necessary to remit the matter to Young J for determination of that issue. In my view, as I said in Parker & Parker [2010] FamCA 664, is it unclear precisely what this means and what evidence may be required for the Court to be satisfied…”…
Hagan and Cann
[2011] FMCAfam 1507 Para 10

…binding”, I consider it necessary to remit the matter to Young J for determination of that issue. In my view, as I said in Parker & Parker [2010] FamCA 664, is it unclear precisely what this means and what evidence may be required for the Court to be satisfied. In other words, does s 90G(1A)(c) require the Court t…
Senior & Anderson
[2011] FamCAFC 129 Para 3

…not binding”, I consider it necessary to remit the matter to Young J for determination of that issue. In my view, as I said in Parker & Parker [2010] FamCA 664, is it unclear precisely what this means and what evidence may be required for the Court to be satisfied. In other words, does s 90G(1A)(c) require the Cou…
Sawyer and Sawyer
[2011] FMCAfam 610

…Townsend & Townsend (1995) FLC 92-569 In the marriage of Zyk & Zyk (1995) FLC 92-644 Kouper v Kouper (No.3) [2009] FamCA 1080 Parker v Parker [2010] FamCA 664 Pierce v Pierce (1999) FLC 92-844 Applicant: MS SAWYER Respondent: MR SAWYER File Number: ROC 266 of 2010 Judgment of: Cassidy FM Hearing dates: 24 & 25 Marc…
Wallace and Stelzer
[2011] FamCA 54

…70 Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 Parker v Parker [2010] FamCA 664 Polyukhovich v The Commonwealth (1991) 172 CLR 501 R v Kidman (1915) 20 CLR 425 Ruane v Bachmann-Ruane & Anor [2009] FamCA 1101 Senior v Anderson [2010] FamC…

View all 9 citing cases →

Cases cited in this decision · 6 of 6 shown

Ruane & Bachmann-Ruane
[2009] FamCA 1101 Para 3

…In Ruane & Bachmann-Ruane and Anor [2009] FamCA 1101, Cronin J, in the context of the provisions of s 90G prior to the recent amendments, discussed the need to obtain legal advice with respect to entering into a financial agreement. His Honour said at [76]: 76. In addition, the plain reading of s 90G is for parties…
Ryledar Pty Ltd v Euphoric Pty Ltd
[2007] NSWCA 65

…meron (1982) 180 CLR 447 Ruane & Bachmann-Ruane and Anor [2009] FamCA 1101 Ruzic & Ruzic [2007] FamCA 473 Ryledar Pty Ltd & Anor v Euphoric Pty Ltd (2007) 69 NSWLR 603…
Ruzic and Ruzic
[2007] FamCA 473 Para 3

…261, Australasian Performing Right Association Ltd v Austrama Television Pty Ltd [1972] 2 NSWLR 467 and a decision of the Family Court, Ruzic & Ruzic [2007] FamCA 473.…
Pukallus v Cameron
[1982] HCA 63 Para 3

…f Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] 69 NSWLR 603, Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336, Pukallus v Cameron (1982) 180 CLR 447, Issa v Berisha [1981] 1 NSWLR 261, Australasian Performing Right Association Ltd v Austrama Television Pty Ltd [1972] 2 NSWLR 467 and a decision of…
Maralinga Pty Ltd v Major Enterprises Pty Ltd
[1973] HCA 23 Para 3

…inrich referred me to the authorities of Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] 69 NSWLR 603, Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336, Pukallus v Cameron (1982) 180 CLR 447, Issa v Berisha [1981] 1 NSWLR 261, Australasian Performing Right Association Ltd v Austrama Television Pty Lt…
[1972] AC 441
[1972] AC 441 Para 3

…s v Cameron (1982) 180 CLR 447, Issa v Berisha [1981] 1 NSWLR 261, Australasian Performing Right Association Ltd v Austrama Television Pty Ltd [1972] 2 NSWLR 467 and a decision of the Family Court, Ruzic & Ruzic [2007] FamCA 473.…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
4, 71A, 79, 90C, 90G, 90K 13 mentions (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 5)