Paul and Paul - [2011] FamCA 672

FAMILY COURT OF AUSTRALIA

PAUL & PAUL

[2011] FamCA 672

FAMILY LAW – PRACTICE AND PROCEDURE – Application by wife for case stated – Application dismissed

Family Law Act 1975 (Cth) s 94A
Family Law Rules 2004 rr 22.47, 22.48, 22.49

B & B and Minister for Immigration Multicultural and Indigenous Affairs and Ors [2002] FamCA 767
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Candlish & Pratt (1980) FLC 90-819
D & D (unreported), Full Court, Appeal No 125/91, 30 April 1992
Director of Public Prosecutions (SA) v B (1998) 194 CLR 566
Kemeny & Kemeny [1998] FamCA 34
Radmacher v Granatino [2010] UKSC 42; [2011] 1 All ER 373
Weinhopf & Weinhopf [2009] FamCA 1084
Woodcock v Woodcock (1997) FLC 92-739
Woodland & Todd (2005) FLC 93-217

APPLICANT:

Ms Paul

RESPONDENT:

Mr Paul

FILE NUMBER:

BRC

10462

2010

DATE DELIVERED:

4 August 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

4 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page SC

SOLICITORS FOR THE APPLICANT:

Neumann & Turnour Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Alexander

SOLICITORS FOR THE RESPONDENT:

Michael Sing Lawyers

Orders

IT IS ORDERED

The wife’s application in a case filed on 2 June 2011 seeking a case stated is dismissed.
The husband’s costs of and incidental to that application are reserved to the trial judge.
The matter be listed before Registrar Coutts for a case conference at 3.45pm on Monday 15 August 2011.

AND IT IS DIRECTED

Counsel confer and if possible agree a set of directions for Registrar Coutts to consider at the case conference.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10462 of 2010

Ms Paul

Applicant

And

Mr Paul

Respondent

REASONS FOR JUDGMENT

Application

This is an application in a case by the wife filed 2 June 2011 for the following relief:
1.That a Case Stated to the Full Court be settled by the Family Court of Australia in the following terms:
On the assumption that the Pre-nuptial Agreement entered into between the parties on 2 March 1994 in [City C], [Country B], was binding on the parties according to the law of [Country B] and having regard to the provisions of Part VIIIA of the Family Law Act 1975 (Cth) would the Family Court of Australia regard the parties as being bound by the terms of the Pre-nuptial Agreement entered into between them on 2 March 1994?
The husband opposes that there be a case stated to the Full Court, but in his affidavit filed 26 July 2011, after reference to the case stated the wife seeks, said:
11.My position is that there is no case to be stated.
12.In the event this Honourable Court is of the view that there is a case to be stated, I propose that the case…

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 Paul and Paul

Details

AGLC: Paul and Paul [2011] FamCA 672
Case: [2011] FamCA 672
Decision Date: 4 August 2011

CaseChat Overview and Summary

In the matter of *Paul and Paul*, O'Reilly J of the Family Court of Australia considered an application by the wife seeking a case stated. The dispute arose from the husband's application for a just and equitable division of property under section 79 of the *Family Law Act 1975* (Cth), which the wife sought to have dismissed. The wife's basis for dismissal was a pre-nuptial agreement entered into by the parties in a foreign country prior to their marriage, which she contended estopped the husband from pursuing property proceedings in Australia.

The central legal issue before the court was whether a pre-nuptial agreement made in a foreign jurisdiction, which was binding according to the laws of that jurisdiction, should be given the same weight as a judgment of a foreign court that finally determines property rights. This question was complicated by the wife's initial application for a case stated that expressly referred to Part VIIIA of the *Family Law Act 1975* (Cth), concerning financial agreements made under that Part. It became common ground that Part VIIIA had no application to agreements made otherwise than pursuant to its specific requirements, rendering the initial question as posed "embarrassing on its face."

O'Reilly J noted that the wife's application for a case stated was dismissed. The court's reasoning, as evidenced by the orders made, indicated that the procedural path chosen by the wife was not appropriate for resolving the underlying legal question. The court directed that the matter be listed for a case conference before a Registrar, with counsel to confer and agree on directions. The husband's costs associated with the wife's dismissed application were reserved to the trial judge.

Orders

Orders of the court

IT IS ORDERED

The wife’s application in a case filed on 2 June 2011 seeking a case stated is dismissed.

The husband’s costs of and incidental to that application are reserved to the trial judge.

The matter be listed before Registrar Coutts for a case conference at 3.45pm on Monday 15 August 2011.

AND IT IS DIRECTED

Counsel confer and if possible agree a set of directions for Registrar Coutts to consider at the case conference.

Background

Background to the litigation

Mr Page, at par 10, referred to the following in Radmacher at [67]: THE ISSUES RAISED67.The issues raised on the facts of this case can be placed under three heads:(a) Were there circumstances attending the making of the agreement that detract from the weight that should be accorded to it?(b) Were there circumstances attending the making of the agreement that enhance the weight that should be accorded to it; the foreign element?(c) Did the circumstances prevailing when the court's order was made make it fair or just to depart from the agreement?We shall have to consider these questions in the context of the facts of this case, but at this stage we propose to address the issues of principle that they raise. (emphasis added) Mr Page referred also to [169] per Lady Hale (dissentiente in the decision): 169.It seems to me clear that the guiding principle in White's case and Miller's case is indeed fairness: but it is fairness in the light of the actual and foreseeable circumstances at the time when the court comes to make its order. Those circumstances include any marital agreement made between the parties, the circumstances in which that agreement was made, and the events which have happened since then. The test to be applied to such an agreement, it seems to me, should be this:'Did each party freely enter into an agreement, intending it to have legal effect and with a full appreciation of its implications? If so, in the circumstances as they now are, would it be fair to hold them to their agreement?'That is very similar to the test proposed by the majority, but it seeks to avoid the 'impermissible judicial gloss' of a presumption or starting point, while mitigating the rigours of the MacLeod test in an appropriate case. It allows the court to give full weight to the agreement if it is fair to do so and I adhere to the view expressed in MacLeod's case that it can be entirely fair to hold the parties to their agreement even if the outcome is very different from what a court would order if they had not made it. It may well be that Lord Mance is correct in his view that the difference between my formulation and that of the majority is unlikely to be important in practice. I would prefer not to take that risk. Mr Page referred to the Press Summary released by the Supreme Court in relation to that decision, tendered as exhibit 1, setting out various extracts from the Press Summary in his written submissions. Mr Page in his written submissions said (par 16):16. It is submitted that the decision of the Supreme Court of the United Kingdom raises a significant question of law and that that question of law is applicable to the courts in Australia notwithstanding the provisions of the Family Law Act, particularly Part VIIIA. There are no decisions that consider the same question considered by the Supreme Court of the United Kingdom. (emphasis added) However, in par 17, despite the last sentence of par 16, Mr Page in fact referred to a relevant Australian decision, namely Weinhopf & Weinhopf [2009] FamCA 1084 per Murphy J, which in turn had referred to an earlier relevant Full Court decision, namely D & D (unreported), Full Court, Appeal No 125/91, 30 April 1992. I will set out Mr Page’s par 17:17.In Weinhopf & Weinhopf [2009] FamCA 1084 Murphy J had to consider the fact that the parties executed a document described as a “pre-nuptial agreement” in Germany in 1976 prior to their marriage. In reliance on that agreement the wife’s parents had made transfers of property and gifts and cash. It was accepted by the Trial Judge that the pre-nuptial agreement did not preclude the husband from pursuing his application for orders pursuant to s 79 nor did it relieve the Court of its obligation to decide the matter in accordance with the provisions laid down by the Act. The Court cited the decision of D & D, an unreported decision of the Full Court on 30th April 1992. …

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Later, during oral argument, Mr Page put the proposed question of law as follows:The Full Court needs to consider the issue whether the same weight as is given to judgments of a foreign jurisdiction that finally determine the rights of parties to property should be given to agreements entered into by parties in a foreign country the effect of which is to finally determine their rights of property. (emphasis added) This, it may be noted, is somewhat different from par 1 of the wife’s application in a case, and different again from Mr Page’s submissions, par 15. There is difficulty also because the case stated sought in the wife’s application in a case expressly refers to Part VIIIA of the Act as having relevance to the question posed for answer. It is now common ground, however, after oral argument, that Part VIIIA has no application whatsoever to agreements made otherwise than pursuant to Part VIIIA: see s 90B in relation to the definition of a “financial agreement” for the purposes of Part VIIIA. This definition applies also to s 90G(1A). The question posed thus is embarrassing on its face. Part VIIIA has nothing to do with agreements made in Country B, or anywhere else. Part VIIIA concerns only agreements which fit its precise requirements. These requirements include that the agreement contains a clause stating that the agreement is expressed to be made under s 90B. Thus, looking back to the application in a case, at least the words: and having regard to the provisions of Part VIIIA of the Family Law Act 1975 (Cth)would need to come out so that the question proposed would thus read:On the assumption that the Pre-nuptial Agreement entered into between the parties on 2 March 1994 in [City C, Country B], was binding on the parties according to the law of [Country B] … would the Family Court of Australia regard the parties as being bound by the terms of the Pre-nuptial Agreement entered into between them on 2 March 1994? Despite these difficulties for the wife, it is plain that if there is to be a case stated a judge must settle it: rules 22.49(1) and (2). The husband, by initiating application filed 9 November 2010, seeks pursuant to s 79 of the Act a just and equitable division of the parties’ property and assets. The wife, by response filed 22 December 2010, seeks that the husband’s application for a division of their property and assets be dismissed. The basis of the wife’s claim for dismissal, as explained in an affidavit by her filed also on 22 December 2010, is that the parties prior to their marriage on 16 April 1994 in Country B entered into a pre-nuptial agreement dated 2 March 1994 which, she contends, has the effect that the husband is estopped from commencing or prosecuting property proceedings here under s 79. Indeed, Mr Page in his written submissions, pars 9 and 11, submitted:9.On 22 December 2010 the wife sought the dismissal of the husband’s application on the basis that the division of their property was governed by the agreement entered into by them in [Country B]. It is the [wife’s] submission that the husband is estopped from commencing proceedings in relation to their property. 11…the [wife] accepts that the [husband] does not accept that he is estopped by reason of the financial agreement or in any other way. (emphasis added)

Ratio Decidendi

Legal Principle Established

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