FAMILY COURT OF AUSTRALIA
| SENIOR & ANDERSON | [2011] FamCA 802 |
| FAMILY LAW - FINANCIAL AGREEMENT - Where the Full Court on appeal remitted the question of whether the financial agreement is binding – Whether the financial agreement is binding under s 90G(1) or s 90G(1A) of the Family Law Act1975 (Cth) as applicable to the agreement made 27 July 2009 FAMILY LAW - STATUTORY INTERPRETATION - Where the majority of the Full Court on appeal agreed on the remittance but differed in relation to the application of the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth) (“the Transitional Act”) and the form of s 90G(1) and s 90G(1A) applicable to the financial agreement made 27 July 2009 – Whether the provisions of the Transitional Act are relevant to the form of s 90G applicable to the financial agreement – Whether items 8(7) and 8A(2) and (3) of the Transitional Act and their effect on s 90G(1)(b) and (c) and s 90G(1A)(b) is consistent with the underlying purpose or object of the Transitional Act – Whether regard may be had to the extrinsic materials – Whether the provisions of the Transitional Act were intended to preclude the operation of s 90G(1A) to declare a financial agreement made on or after 14 January 2004 and before 4 January 2010 binding notwithstanding non-compliance with s 90G(1) in circumstances where s 90G(1)(b) is satisfied but s 90G(1)(c) is not satisfied FAMILY LAW - DECLARATION - Where the husband sought to further amend his amended response to seek an order that the financial agreement be declared binding – Whether the court has the power to declare a financial agreement binding – Whether the provisions of s 90G(1A) must be satisfied before the discretion in s 90G(1A)(c) may be exercised in order to declare the agreement binding pursuant to s 90G(1A)(d) and s 90G(1B) |
| Acts Interpretations Act 1901 (Cth), ss 15AA, 15AB Federal Proceedings (Costs) Act 1981 (Cth), s 8 |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied Black v Black (2008) FLC 93-357, discussed CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, cited Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, applied Parker v Parker (2010) 43 Fam LR 548, cited Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 891, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied Saraswati v The Queen (1991) 172 CLR 1, cited Senior & Anderson (2011) FLC 93-470, applied Senior & Anderson [2010] FamCA 601, related |
| APPLICANT: | Ms Senior |
| RESPONDENT: | Mr Anderson |
| FILE NUMBER: | MLC | 9546 | of | 2008 |
| DATE DELIVERED: | 21 October 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Young… |
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- SENIOR & ANDERSON [2011] FamCA 802
- Case
- [2011] FamCA 802
- Decision Date
CaseChat Overview and Summary
The court was required to determine the applicability of the *Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009* (Cth) (the Transitional Act) to the financial agreement. This involved interpreting the form of s 90G(1) and s 90G(1A) that applied to the agreement, and whether the Transitional Act's provisions, including items 8(7), 8A(2), and 8A(3), were consistent with its underlying purpose. A key question was whether these provisions precluded the operation of s 90G(1A) to declare an agreement binding, notwithstanding non-compliance with s 90G(1)(c) where s 90G(1)(b) was satisfied. The court also considered whether extrinsic materials could be used in this interpretation and the court's power to declare an agreement binding under s 90G(1A).
Young J reasoned that the financial agreement was not binding under either s 90G(1) or s 90G(1A) of the *Family Law Act 1975* (Cth), as amended by the Transitional Act. Consequently, the agreement did not preclude the application of Part VIII of the Act. The court dismissed various applications by both the wife and the husband, including the husband's application to further amend his response to seek a declaration that the agreement be binding. The court also made orders for the listing of the matter for further case management and directions regarding final property settlement orders.
Orders
Orders of the court
IT IS ORDERED:
1.
THAT the financial agreement entered into between the parties and dated 27 July 2009 is not a binding financial agreement pursuant to s 90G(1) or s 90G(1A) of the Family Law Act 1975 (Cth) as amended by the Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth).
2.
THAT the financial agreement entered into between the parties and dated 27 July 2009 does not, pursuant to s 71A, preclude the application of Part VIII of the Family Law Act 1975 (Cth).
3.
THAT the orders sought in paragraphs 5 to 12 of the wife’s Amended Initiating Application filed 17 March 2010 seeking final orders pursuant to s 79 of the Family Law Act 1975 (Cth), be listed before Young J at 10.00 a.m. on 20 December 2011 for further case management and directions.
4.
THAT the final orders sought by the wife in paragraphs 1 to 4 of her Amended Initiating Application filed 17 March 2010 be otherwise dismissed.
5.
THAT the orders sought by the husband in his Amended Response to the Initiating Application filed 12 September 2011 be otherwise dismissed.
6.
THAT the further application of the husband foreshadowed in his written submissions filed 30 September 2011 to further amend paragraph 2 of his Amended Response be dismissed.
7.
THAT there be no order as to costs (save as discussed in paragraph 166 of the reasons for judgment).
IT IS CERTIFIED:
8.
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of senior counsel and counsel for the wife and counsel for the husband.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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