Senior & Anderson

Case [2010] FamCA 601

FAMILY COURT OF AUSTRALIA

SENIOR & ANDERSON [2010] FamCA 601
FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – Errors within the document – Document drawn pursuant to s 90C rather than s 90D – Errors on the coversheet, heading and substantive clause of agreement – Parties’ given names wrongly stated in annexed solicitor’s certificates – Parties divorced prior to execution of agreement – Orders sought that the document is not a financial agreement as drawn and is not binding upon the parties – Consideration of affidavit evidence of parties and solicitors – Objection to wife’s solicitor acting – Common intention of parties to division of assets and property settlement – Amending legislation – Intention of parliament in introducing amended legislation – Mistake and rectification – Correction of the mistakes within the agreement – Consideration of s 90G, s 90G(1B), (1C) and s 90KA – Valid, enforceable and effective – Consideration of the words “valid” and “effective” – Exchange of contracts and concluded agreement – Onus of proof
Family Law Act 1975 (Cth) ss 4, 71A, 79, 90C, 90D, 90G, 90G(1A), (1B) and (1C), 90K, 90KA
Federal Justice Systems Amendment (Efficiency Measures) Act 2009 (Cth)
Ruane & Bachman-Ruane & Anor (2009) FamCA 1101
Black & Black [2008] FLC 93-357
J & J (2006) FamCA 442
Balzia and Covich (2009) FamCA 1357
Ryledar Pty Ltd & Anor v Euphoric Pty Ltd (2007) 69 NSW LR 603
Fevia & Carmel-Fevia (2009) FLC 93-411 816
Sindel v Georgiou (1984) 154 CLR 661
Kostres and Kostres (2009) FLC 93-420
APPLICANT: MS SENIOR
RESPONDENT: MR ANDERSON
FILE NUMBER: MLC 9546 of 2008
DATE DELIVERED: 13 JULY 2010
PLACE DELIVERED: MELBOURNE
PLACE HEARD: MELBOURNE
JUDGMENT OF: YOUNG J
HEARING DATE: 10 MAY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR WERNER
SOLICITOR FOR THE APPLICANT: BRENDAN LEWIS
COUNSEL FOR THE RESPONDENT: MR DEVRIES
SOLICITOR FOR THE RESPONDENT: ALLAN McMONIES

TABLE OF CONTENTS

REASONS FOR JUDGMENT
ORDERS PRONOUNCED
BACKGROUND FACTS
DOCUMENTS READ AND RELIED UPON
THE AGREEMENT
SOLICITOR’S ADVICE GIVEN TO WIFE ON AGREEMENT
OBJECTION TO WIFE’S SOLICITOR
HUSBAND’S EVIDENCE
FINDINGS UPON THE AGREEMENT
THE SOLICITOR’S CERTIFICATES
FAMILY LAW ACT 1975 (CTH)
SECTION 90C OR SECTION 90D?
THE AGREEMENT – REFERENCES TO S 90C
LEGAL PRINCIPALS
RECTIFICATION OF THE AGREEMENT
SECTION 90KA, SUBMISSIONS OF WIFE’S COUNSEL

Orders

IT IS ORDERED:

  1. IT IS DECLARED that the agreement executed on or about 27 July 2009 by the husband and wife is a financial agreement pursuant to s90D of the Family Law Act 1975 (Cth).

  2. THAT such financial agreement and the annexed Solicitor’s Certificates, in the current form as drafted, be rectified to accord with the provisions of s90D of the Act.

  3. THAT paragraph 1 of the wife’s amended application filed 17 March 2010 be otherwise dismissed.

  4. THAT the issue of costs arising from these orders are reserved to the trial Judge.

  5. THAT the hearing of all extant applications be listed as a continuing defended hearing before Young J on 23 July 2010 at 10.00 a.m.

  6. THAT any further interim…

Continue reading Senior & Anderson

Sign in free to access the full text

Details
AGLC
Senior & Anderson [2010] FamCA 601
Case
[2010] FamCA 601
Decision Date

CaseChat Overview and Summary

In the matter of *Senior & Anderson*, Young J of the Family Court of Australia considered an agreement executed by a husband and wife on or about 27 July 2009. The dispute concerned the validity and enforceability of this agreement, with the husband seeking to have it declared a financial agreement pursuant to section 90D of the *Family Law Act 1975* (Cth).

The court was required to determine whether the agreement, as drafted, met the requirements of section 90D of the *Family Law Act 1975* and, if not, whether it could be rectified to accord with the provisions of that section. The court also had to consider the impact of recent legislative amendments, specifically Schedule 5 of the amending legislation, which came into operation on 4 January 2010 and had retrospective effect to agreements made on or after 27 December 2000.

Young J's reasoning was heavily influenced by the legislative intent behind the amendments, which were enacted to overcome the effect of the Full Court's decision in *Black v Black*. Parliamentary materials, including the Second Reading Speeches of the Attorney-General and Senator Carr, and the Explanatory Memoranda, indicated a clear intention to relax certain technical requirements for financial agreements to restore confidence in their binding nature and enforceability, preventing parties from avoiding them on mere technicalities. The court found that the agreement executed by the parties fell within the scope of these retrospective amendments.

Consequently, the court declared that the agreement executed by the husband and wife was a financial agreement pursuant to section 90D of the *Family Law Act 1975*. The court further ordered that the financial agreement and annexed Solicitor's Certificates be rectified to accord with the provisions of section 90D. Paragraph 1 of the wife's amended application was dismissed, costs were reserved to the trial judge, and the hearing of extant applications was listed for a continuing defended hearing.

Orders

Orders of the court

IT IS ORDERED:

1.

IT IS DECLARED that the agreement executed on or about 27 July 2009 by the husband and wife is a financial agreement pursuant to s90D of the Family Law Act 1975 (Cth).

2.

THAT such financial agreement and the annexed Solicitor’s Certificates, in the current form as drafted, be rectified to accord with the provisions of s90D of the Act.

3.

THAT paragraph 1 of the wife’s amended application filed 17 March 2010 be otherwise dismissed.

4.

THAT the issue of costs arising from these orders are reserved to the trial Judge.

5.

THAT the hearing of all extant applications be listed as a continuing defended hearing before Young J on 23 July 2010 at 10.00 a.m.

6.

THAT any further interim application to be filed by solicitors for either of the parties is to be filed and served by 2 July 2010 and made returnable on 23 July 2010 before Young J.

7.

THAT the defended hearing fixed before Young J at 10.00 a.m. on 2 July 2010 be vacated.

IT IS CERTIFIED

8.

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

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

Counsel for the husband first identified that the intention of Parliament in enacting the amending legislation was primarily “to overcome the effect of the Full Court’s decision in Black & Black”. Secondly and in the second reading speech of the Attorney-General, dated 3 December 2008, and when introducing the amended legislation in Parliament, it was said that:“Importantly, the bill responds to the decision of the full court of the Family Court of Australia in the matter of Black and Black.In that case, the court found that a binding financial agreement (commonly known as a pre-nuptial agreement) made under the Family Law Act 1975 was invalid because it did not strictly comply with certain technical requirements set out in the Family Law Act.The amendments are being made because the government is concerned about the possible consequences of that decision on the validity of existing binding financial agreements which may contain technical errors.The bill amends the Family Law Act to ensure that people who have made an informed decision to enter into one of these agreements cannot later avoid or get out of the agreement on a mere technicality, resulting in court battles that the agreement was designed to prevent. These amendments will restore confidence and certainty in the binding nature and enforceability of financial and termination agreements under the Family Law Act”. (emphasis added) Counsel for the husband identified in paragraphs 19, 20 and 21 of his further written submissions the commentary of Senator Carr, 26 October 2009, in closing debate in the Senate upon the Second Reading of the Bill where it was said that:“The Bill responds to the decision of the Full Court of the Family Court of Australia in Black v Black. The Bill amended the Family Law Act to limit the technical requirements that people need to meet to enter into one of these agreements while still providing necessary protections to parties – such as a requirement to get legal advice. It will restore confidence in the binding nature and enforceability of financial and termination agreements under the Family Law Act”. Similar sentiments are recorded in the Explanatory Memoranda for the Bill (as were submitted to the Court in paragraph 20 of the husband’s further written submissions) and where it is said that such memorandum recorded that:“Schedule 5 to the Bill amends the binding financial agreements and termination agreements pursuant to the provisions of the Family Law Act 1975 to relax certain technical requirements that must be strictly satisfied for financial agreements and termination agreements to be binding. These amendments will respond to the concerns about binding financial agreement provisions of the Act that have arisen following the decision of the Full Court of the Family Court in Black v Black. The Family Law Council has confirmed that amendments are required to restore confidence in the binding nature of these agreements”. Schedule 5 became operative on 4 January 2010. There is a transition provision provided for in Item 8 of that Schedule so that the legislative amendments have retrospective operation to all agreements made on or after 27 December 2000 and thus catch the agreement executed by these parties on 27 July 2009.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.