Senior & Anderson

[2011] FamCAFC 129

FAMILY COURT OF AUSTRALIA

SENIOR & ANDERSON [2011] FamCAFC 129

FAMILY LAW - APPEAL – (Per May J) – Property – Binding Financial Agreement – Where the subjective and common intention of the parties regarding the division of their property was properly expressed in the agreement – Where the mistakes in the agreement were of a technical nature – Where the incorrect reference to s 90C can be rectified to s 90D to reflect the parties’ true position – Where the incorrect reference to the parties’ names cannot be rectified by s 90KA but where it is appropriate to correct the solicitor’s error by reading the certificates as if they referred to the parties correctly – Where the remedial provisions in this case inevitably lead to a conclusion that it would be unjust and inequitable if the parties’ agreement is found not to be binding – Given the circumstances it is not necessary to remit the matter to the trial judge – Where this case is a good demonstration of Parliament’s intentions to not allow technical faults to be the basis for setting aside an agreement – The appeal should be dismissed.

FAMILY LAW - APPEAL – (Per Strickland J) – Property – Binding Financial Agreement – Where there were errors in the Agreement and the annexed Solicitor’s Certificates – Where the Agreement is described as being a s 90C Financial Agreement instead of a s 90D Financial Agreement and where the names of the parties were incorrect in the Solicitor’s Certificates – Whether the trial judge erred in rectifying the Agreement to accord with the provisions of s 90C of the Family Law Act 1975 (Cth) and in rectifying the Solicitor’s Certificates – Whether the trial judge erred in declaring that after rectification the Agreement was a Financial Agreement pursuant to s 90D of the Act and was binding on the parties pursuant to s 90G(1) of the Act – No merit found in the grounds of appeal relating to the rectification of the mis-description of the section pursuant to which the Agreement was made and the finding that the Agreement was a Financial Agreement, although the trial judge erred in finding that the power to rectify was derived in part from the recent amendments to the Act – Merit found in the grounds of appeal relating to the rectification of the Solicitor’s Certificates and the finding that the Financial Agreement was binding on the parties pursuant to s 90G(1) of the Act – Appeal allowed and remitted to the trial judge to determine whether the financial agreement can be declared binding pursuant to s 90G(1A) and (1B) of the Act.

FAMILY LAW - APPEAL – (Per Murphy J) – Property – Binding Financial Agreement – Effect of the transitional provisions of the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) (“the Amending Act”) – Where the effect of Item 8A of Schedule 5 of the Amending Act on the Binding Financial Agreement was not considered…