Resch & Resch - [2008] FMCAfam 571

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RESCH & RESCH

[2008] FMCAfam 571

FAMILY LAW – Application to enforce settlement of property issues – neither consent orders nor financial agreement signed – Family Law Act 1975 and Family Law Rules 2004 prevent enforcement of unsigned financial agreements and consent orders – application dismissed.

COSTS – Proceedings brought by unrepresented party to enforce oral agreement to settle – other party did not execute settlement documents and resisted application to enforce oral agreement – half costs awarded.

Family Law Act 1975, s.90G
Family Law Rules 2004, r.10.15
Federal Magistrates Court Rules 2001

Black & Black (2008) FamCAFC 7

Applicant:

MR RESCH

Respondent:

MS RESCH

File Number:

BRC 2741 of 2008

Judgment of:

Cameron FM

Hearing date:

27 May 2008

Date of Last Submission:

27 May 2008

Delivered at:

Brisbane

Delivered on:

27 May 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms M. Gillies

Solicitors for the Respondent:

Tiyce & Partners Lawyers

ORDERS

The husband’s application to enforce an alleged compromise of the parties’ respective claims for property settlement orders in terms of the documents contained in Exhibit A in the interim application be dismissed.
The applicant husband pay the respondent wife her costs of the interim application fixed in the amount of $2262.50.
The costs be payable forthwith out of the parties’ funds held in the trust account of Harrington Family Solicitors.
The applicant husband do all acts and things as are necessary to facilitate the disbursement of those funds from the Harrington Family Solicitors trust account.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Cameron delivered this day will for all publication and reporting purposes be referred to as Resch & Resch.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 2741 of 2008

MR RESCH

Applicant

And

MS RESCH

Respondent

REASONS FOR JUDGMENT

These proceedings were commenced by an application filed by the husband on 27 March 2008. In that application the husband seeks orders effecting a property settlement between him and the respondent wife. Filed at the same time was a financial statement sworn by the applicant husband on 26 March 2008. Notwithstanding that, on the face of it, the application is for a property settlement and it will be on that basis that the proceedings will ultimately proceed, it is, in reality, an application for the enforcement of an agreement which the husband says was struck with the wife in relation to their property affairs.
In this regard, in his affidavit sworn/affirmed 13 May 2008 and filed that day the husband deposes to property settlement negotiations between him and his wife which started in mid-2007, proceeded to mediation and, it would appear, reached finality in the terms of a proposed application for consent orders, a proposed financial agreement and proposed consent orders which are referred to in that affidavit of the husband. Those documents were tendered and are Exhibit A in these interlocutory proceedings.
The husband’s position, which would appear to be borne out by the affidavit of the wife affirmed 21 May 2008 and filed in Court today, is that following mediation the parties did reach an agreement. The husband deposes to him having executed the necessary documents and providing them to his wife, who then failed to have them filed in the Court although it appears that at that time there were no proceedings on foot.
Unsurprisingly, the husband seeks the enforcement of the agreement which it would appear that he and his wife struck following the mediation.
At common law it is possible for parties to reach an agreement which is not evidenced in writing and such oral agreements, even oral agreements to settle proceedings, can be enforced. However, the same situation does not apply in proceedings under the Family Law Act 1975 (“Act”).
The documents which were tendered by the husband and are Exhibit A are an unsigned application for consent orders, an unsigned financial agreement and unsigned draft consent orders for filing in this Court. Unfortunately for the husband’s application today, the documents which he has put before the Court do not meet the criteria of the Act or the Family Law Rules 2004 (“Rules”) such as would permit this Court today to make the orders which he seeks.
In relation to the application for consent orders, r.10.15(2)(c) states:
(2)     A draft consent order must:
(a)     …
(b)     …
(c) be signed by each of the parties.
as a mandatory requirement.
The policy behind such a requirement is clear, particularly in circumstances where parties can appear before the Court without the benefit of legal representation. It is necessary that documents which resolve proceedings of whatever sort which come before the Court should be clearly evidenced and that there be no misunderstanding as to the contents of any agreement which is reached. That must be the policy behind the requirement found in r.10.15(2)(c). Consequently, the application for consent orders which is part of Exhibit A would not be a basis upon which I could today give the relief which the applicant husband seeks.
However, much more important for his application is the proposed financial agreement. Section 90G of the Act says that a financial agreement is binding on the parties to the agreement if, and only if, the criteria then following in the section are met. Those criteria are that:
a)the agreement is signed by both parties;
b)the agreement contains a statement that the parties have had independent legal advice;
c)the agreement annexes a certificate signed by a person providing the advice; and
d)an original signed copy is given to one of the parties and a copy given to the other.
None of those criteria are satisfied in relation to the proposed financial agreement which is part of Exhibit A. Indeed, in his submissions today the applicant husband conceded that the documents which he signed and provided to his wife had not been signed by her.
Counsel for the wife took the Court to the decision of the Full Court of the Family Court in Black & Black (2008) FamCAFC 7 which dealt with s.90G as it stood prior to amendments to the Act made in 2004. Although their Honours were dealing with a former version of the section, nevertheless the reasoning in that decision is applicable in this case. The consequence of that is that I must conclude that the requirements of s.90G are mandatory and unless they are satisfied no proposed financial agreement is enforceable. In the circumstances of this case, where the proposed financial agreement upon which the husband relies does not meet the criteria of the Act, I cannot give the relief which he seeks.
For those reasons his application for orders in terms of the agreement evidenced by the documents contained in Exhibit A will be refused.
The wife has made an application for costs following the wholly unsuccessful application by the husband for orders enforcing the agreement, which I am satisfied was reached by the parties following mediation. To an extent I think the costs application is unmeritorious. Because the parties went to mediation and, I am satisfied, reached an agreement, the husband was, I accept, induced to sign the documents which were provided to him. For some reason, possibly a good reason but a reason which has not been explained, the wife proceeded no further.
The applicant husband has said from the bar table, and it has not been contradicted, that following the execution of the documents by him, money was released from the trust account of the wife’s former solicitors to pay the legal costs incurred to that point. The fact that the wife did not follow through with the agreement which was reached was her right. The fact that the husband brought an application to enforce the agreement which was reached is completely understandable, although if he had had legal advice he would not have made that application.
That failure to take advice has led to the wife incurring costs which she would not otherwise have incurred.
However, the costs which the wife seeks today, in my view, do not correctly reflect the way that the Court’s scale applies to this matter in that I am not of the view that it is appropriate to approach this matter as if it was a full day matter. It was only an interlocutory application which should be assessed as a half day matter. On my calculations, treating the matter as a half day matter, noting the presence of solicitor and counsel and making allowance for the advocacy loading together with the disbursements which are identified and which I accept, I calculate the wife’s costs under the Federal Magistrates Court Rules2001 to amount to $4,525.
Given the circumstances in which the matter has come before the Court I am of the view that the wife is entitled to half those costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 10 June 2008