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Ruane & Bachmann-Ruane

Ruane & Bachmann-Ruane

Case [2009] FamCA 1101 20 November 2009

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FAMILY COURT OF AUSTRALIA

RUANE & BACHMANN-RUANE & ANOR

[2009] FamCA 1101

FAMILY LAW – PROPERTY - Financial agreement not binding - Strict compliance with s 90G discussed - Requirement that certificate be signed by an Australian lawyer - Discussion about distinction between recital and operative parts of a financial agreement - Principles of rectification discussed and rejection of the principle of estoppel applying

Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)
Legal Profession Act 2004 (NSW)
Legal Profession Act 2007 (Qld)

ASIC and Rich and Anor (2003) FLC 93-171
Black and Black (2008) FLC 93-357
Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20
Codelfa Contruction Pty Ltd v State Rail Authority of New South Wales [1982] 56 ALJR 459
Cornall v Nagle [1995] 2 VR 188
Fevia and Carmel-Fevia [2009] FamCA 816
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Kok Hoong v Leong Cheong Kweng Mines Limited [1964] 1 All ER 300
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Milne v Attorney-General (Tas) (1956) 95 CLR 460
Murphy v Murphy [2009] FMCAfam 270
O’Loughlin and Ors v Mount and Mount [1998] SASC 6672
Price and Underwood [2008] FamCAFC 46
Thornby v Goldberg (1964) 112 CLR 597
Todd and Todd (No 2) (1976) FLC 92-008
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387
Woodcock (1997) 21 Fam LR 393

APPLICANT:

Mr Ruane

RESPONDENT:

Ms Bachmann-Ruane

2^ND RESPONDENT:

F Firm

FILE NUMBER:

SYC

1991

2009

DATE DELIVERED:

20 November 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glick QC with Mr Strum

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT:

Mr North SC with Dr Ingleby

SOLICITOR FOR THE RESPONDENT:

Gadens Lawyers

COUNSEL FOR THE 2^ND RESPONDENT:

Ms Colla

SOLICITOR FOR THE RESPONDENT:

Wotton Kearney

Orders

For the purposes of Part VIIIA of the Family Law Act 1975 (Cth), the financial agreement between the parties and dated 20 October 2008 is not binding.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 1991 of 2009

Mr Ruane

Applicant

And

Ms Bachmann-Ruane

Respondent

And

F Firm
2^nd Respondent

REASONS FOR JUDGMENT

Mr Ruane (“the husband”) and Ms Bachmann-Ruane (“the wife”) ostensibly concluded the financial arrangements in their marriage by an agreement dated 29 October 2008. Each signed the agreement.
It was clear on the face of the document and by the subsequent actions of each of the parties, the marriage was at an end.
The document dated 29 October 2008 was described as, and endorsed with the words, “financial agreement for the purposes of Part VIIIA of the Family Law Act 1975”. I shall refer to the document…

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 Ruane & Bachmann-Ruane

Details

AGLC: Ruane & Bachmann-Ruane [2009] FamCA 1101
Case: [2009] FamCA 1101
Decision Date: 20 November 2009

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal concerning the enforceability of a financial agreement made between the parties, Mr. Ruane and Ms. Bachmann-Ruane, on 20 October 2008. The primary dispute revolved around whether this agreement, purportedly made under Part VIIIA of the *Family Law Act 1975* (Cth), was binding on the parties.

The central legal issue before the Full Court was whether the financial agreement dated 20 October 2008 was binding within the meaning of Part VIIIA of the *Family Law Act 1975* (Cth). This required the Court to determine if the agreement met the statutory requirements for validity and enforceability under that Part.

Cronin J, delivering the judgment of the Full Court, found that the financial agreement was not binding. The Court's reasoning, though not detailed in the provided extract, led to the conclusion that the agreement failed to satisfy the conditions stipulated in Part VIIIA of the *Family Law Act 1975* (Cth) for it to be considered a binding financial agreement.

Consequently, the Full Court ordered that for the purposes of Part VIIIA of the *Family Law Act 1975* (Cth), the financial agreement between the parties dated 20 October 2008 is not binding.

Orders

Orders of the court

For the purposes of Part VIIIA of the Family Law Act 1975 (Cth), the financial agreement between the parties and dated 20 October 2008 is not binding.

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.

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Citations

Ruane & Bachmann-Ruane [2009] FamCA 1101

Most Recent Citation

Carran & Carran [2022] FedCFamC2F 818

Cases Citing This Decision

Dragomirov & Dragomirov [2024] FedCFamC1A 187
Citation 1 (Para 6)

…the advice given, or even whether or not the advice is accepted, has been considered irrelevant to the present inquiry: 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…
Suess & Suess [2024] FedCFamC1F 175
Citation 2 (Para 14)

…In Ruane & Bachmann-Ruane & Anor [2009] FamCA 1101, Cronin J considered that the only requirement was that the parties obtain legal advice as opposed to the quality or nature of the advice or even whether the advice was accepted.…
Carran & Carran [2022] FedCFamC2F 818
Citation 3 (Para 19)

…parties to be admissible, although ‘if the facts are notorious knowledge of them will be presumed’. See also Ruane v Bachman-Ruane [2009] FamCA 1101, [62], at which Cronin J referred to Codelfa in the context of completeness and whether certain essential terms could be implied, extracting Mason J’s remarks above, a…
DAILY & DAILY [2020] FamCA 486
Citation 4 (Para 1)

…In Ruane & Bachmann-Ruane [2009] FamCA 1101 Cronin J considered that the only requirement was that the parties obtain legal advice as opposed to the quality or nature of the advice or even whether the advice was accepted.…
Guild & Stasiuk [2020] FamCA 348
Citation 5 (Para 2)

…in paragraph 48 of the decision in Black v Black . The formalities of s 90G(1)(b) as applicable in June 2008 were observed in this case. [414] [2009] FamCA 1101.…
Chaffin & Chaffin [2019] FamCA 260
Citation 6 (Para 2)

…As to uncertainty Cronin J in Ruane & Bachmann-Ruane and Anor [2009] FamCA 1101 observed: 59.The certainty or completeness of an agreement is a matter of degree. The parties have to agree on all of the essential terms. (See Thornby v Goldberg [1964] HCA 41; (1964) 112 CLR 597 at 607). In a financial agreement under…
Laconi and Cosgrove [2017] FCCA 1179
Citation 7 (Para 2)

…e, for example, Hay & Hay [2014] FCCA 775. The contractual doctrines of uncertainty may be invoked in relation to a BFA: Ruane Backman-Ruane and Anor [2009] FamCA 1101 (a financial agreement under s 90C of the Act); Garvey & Jess [2016] FamCA 445. The principles of severance of a contractual term can apply to a BFA,…
Warner and Cummings [2017] FCCA 432
Citation 8 (Para 1)

…ement. Cronin J noted in Ruane v Bachmann – Ruane and Anor [2009] FamCA 1101 at [49] that there was no requirement that a document have a particular style or formality. He noted that the Full Court in Black v Black [2008] FLC 93 – 357 had said at [45] that “strict compliance with the statutory requirements is necess…
Curtain & Curtain [2016] FamCA 577
Citation 9 (Para 7)

…In Ruane & Bachmann-Ruane [2009] FamCA 1101 Cronin J considered Woodcock and was of the view that the application of estoppel to financial agreements was a vexed question saying at [54]-[55]:- In contract law, principles of estoppel arise in relation to the creation of rights where non-contractual promises and repre…
Garvey & Jess [2016] FamCA 445
Citation 10 (Para 3)

…stence of a financial agreement because if there is no agreement, there is no financial agreement to set aside. (see Ruane & Backman-Ruane and Anor [2009] FamCA 1101 at [54])…
Duncan and Duncan [2014] FCCA 2729
Citation 11 (Para 2)

…In Ruane & Bachmann-Ruan & Anor [2009] FamCA 1101 Cronin J said: “THE PROVISIONS OF PART VIIIA. 27.A financial agreement is defined by the Act to mean an agreement specifically referred to in s 90B, s 90C or s 90D. 28.One of the three sections is applicable depending upon the time of the relationship at which the ag…
WENTWORTH and Hamilton & Anor [2014] FamCA 533
Citation 12 (Para 10)

…y J). In that matter the subject BFA had been declared non-binding within the meaning of s 90G of the Act following a hearing ( Ruane & Bachman-Ruane [2009] FamCA 1101 - Cronin J). Thus, the factual matrix leading to the agreement being entered into was the subject of findings in contested proceedings between the hu…
Renard and Geach [2013] FCCA 617
Citation 13 (Para 10)

…In the matter of Ruane & Bachmann-Ruane [2009] FamCA 1101, Cronin J held that only advice from a lawyer qualified to practise in Australia is capable of satisfying s.90G(1). If the wife seeks to enforce the provisions of the Bali document, she will need to do so in Indonesia.…
Logan and Logan [2012] FMCAfam 12
Citation 14 (Para 3)

…circumstances where I have found she was not fully advised of the implications of the amendment to clause 15. 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 i…
Pascot & Pascot [2011] FamCA 945
Citation 15

…91-094 Public Trustee (as an executor of the estate of Gilbert) & Gilbert (1991) FLC 92-799 Rolfe & Rolfe (1979) FLC 90-629 Ruane & Backman-Ruane [2009] FamCA 1101 Senior & Anderson (2011) FLC 93-470 Simpson & Hamlin (1984) FLC 91-576 Sullivan & Sullivan [2011] FamCA 752 Taylor v Johnson (1983) 151 CLR 422 Turner v…
Sullivan & Sullivan [2011] FamCA 752
Citation 16 (Para 13)

…In Ruane & Bachmann-Ruane & Anor [2009] FamCA 1101 Cronin J discussed the distinction between the recitals and operative clauses of an agreement and cited Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337. Cronin J stated at paragraph 62 in Ruane & Bachmann Ruane (supra) that:…
Hagan and Cann [2011] FMCAfam 1507
Citation 17 (Para 8)

…nt case there is a concession that the wife had not obtained independent legal advice. I was also referred to the case of Ruane & Bachman-Ruane & Ors [2009] FamCA 1101 and, in particular, at paragraphs 81 to 82 of that case, the court said: “[81] The giving of legal advice lies at the very heart of the practice of t…
Wallace and Stelzer [2011] FamCA 54
Citation 18

…arker 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] FamCA 601 S v S (unreported judgment delivered 11 December 1991: Baker, Lindenmayer and Rourke JJ, Full Court of the Family Court of…
Parker & Parker [2010] FamCA 664
Citation 19 (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…
Barre & Barre [2021] FamCA 101
Citation 20 (Para 13)

…contractual principles are applicable to the question of enforcement raised in connection with s 90KA. Cronin J in Ruane & Backman-Ruane and Anor [2009] FamCA 1101 (“ Ruane & Backman-Ruane ”) at [53] drew a distinction between the principles applicable to validity and those applicable to enforcement, saying “ the pr…

See all citing cases →

Cases Cited

Fevia & Carmel-Fevia [2009] FamCA 816
Citation 1 (Para 3)

…Murphy J in Fevia and Carmel-Fevia [2009] FamCA 816 observed: 120.If an agreement purports by its terms to exclude the operation of Part VIII of the Act in respect of the matters the subject of the agreement, there is potential for there to be a collision between the principles of contract and equity applicable to…
Murphy and Murphy [2009] FMCAfam 270
Citation 2 (Para 8)

…In Murphy v Murphy [2009] FMCAfam 270 Coates FM said legal advice was advice about the law of a particular jurisdiction. His Honour determined that legal practitioner meant a person entitled to practice in the jurisdiction. That would therefore exclude an Australian academic lawyer or an international lawyer who migh…
Price & Underwood [2008] FamCAFC 46
Citation 3 (Para 1)

…as meaning the destruction of the marital relationship. (See Todd and Todd (No 2) (1976) FLC 92-008 and more recently Price and Underwood [2008] FamCAFC 46). Thus, in respect of the requirement of strict compliance, precise language is not necessary so long as the import is clear. That is the case here.…
O'Loughlin v Mount & Mount No. Scgrg-96-2417 Judgment No. S6672 [1998] SASC 6672
Citation 4 (Para 8)

…In O’Loughlin and Ors v Mount and Mount [1998] SASC 6672 there was an argument about the use to which recital clauses could be put because there was an inconsistency between the recital and what was described as the operative part of the agreement. Lander J held that where the operative part was clear and unambiguo…
Waltons Stores (interstate) Ltd v Maher [1988] HCA 7
Citation 5 (Para 4)

…the doctrinal principle of estoppel could be relied upon. Importantly, the decision of the High Court in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 was considered. In that decision, a number of principles were clarified about estoppel. However, in contemplating the case stated in Woodcock , the F…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24
Citation 6

…FLC 93-357 Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 Codelfa Contruction Pty Ltd v State Rail Authority of New South Wales [1982] 56 ALJR 459 Cornall v Nagle [1995] 2 VR 188 Fevia and Carmel-Fevia [2009] FamCA 816 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) F…
Maralinga Pty Ltd v Major Enterprises Pty Ltd [1973] HCA 23
Citation 7 (Para 1)

…y intended and order rectification so that the contract expressed a true intention of the parties. (See Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336).…
Thorby v Goldberg [1964] HCA 41
Citation 8 (Para 4)

…The certainty or completeness of an agreement is a matter of degree. The parties have to agree on all of the essential terms. (See Thornby v Goldberg (1964) 112 CLR 597 at 607). In a financial agreement under s 90C of the Act, certainty and completeness means that there can be no dispute about what the parties expect…
Milne v Attorney-General For the State of Tasmania [1956] HCA 48
Citation 9 (Para 5)

…e to imply the terms of a contract as for example, where there is a series of documents said to contain the terms (see Milne v Attorney-General (Tas) (1956) 95 CLR 460).…
Cavallari v Premier Refrigeration Co Pty Ltd [1952] HCA 26
Citation 10 (Para 5)

…mply obligations relating to each step necessary to complete a particular agreement between parties (See Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 at 27) but there are other times where the complexity of the circumstances would cause a court to decline to imply the terms of a contract as for exa…
[2016] AC 660 [2016] AC 660
Citation 11 (Para 12)

…The giving of legal advice lies at the very heart of the practice of the law (see Cornall v Nagle [1995] 2 VR 188).…
Limited v Maher 13 QBD 360
Citation 12 (Para 4)

…stion of whether the doctrinal principle of estoppel could be relied upon. Importantly, the decision of the High Court in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 was considered. In that decision, a number of principles were clarified about estoppel. However, in contemplating the case stated in Wood…

Legislation Cited

Family Law Act 1975 (Cth) 87(3)
2 mentions (from Para 5)
Acts Interpretation Act 1901 (Cth)
1 mention
Judiciary Act 1903 (Cth)
1 mention (from Para 1)
Legal Profession Act 2004 (Vic)
1 mention (from Para 11)
Legal Profession Act 2007 (TAS)
1 mention (from Para 11)