Smart and Smart

[2008] FMCAfam 341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMART & SMART [2008] FMCAfam 341

FAMILY LAW – Property – binding financial agreement – need for strict compliance with legislative regime.

Family Law Act 1975, s.90G

J & J [2006] FamCA 442
Black and Black [2008] FamCAFC 7

Applicant: MR SMART

Respondent: MS SMART

File Number: SYC 1308 of 2007

Judgment of: Kemp FM

Hearing date: 2 November 2007

Date of Last Submission: 28 February 2008

Delivered at: Sydney

Delivered on: 14 April 2008

REPRESENTATION

Counsel for the Applicant: Mr R Schonell

Solicitors for the Applicant: Broun Abrahams Burreket

Counsel for the Respondent: Mr G Richardson SC

Solicitors for the Respondent: Barkus Edwards Doolan

ORDERS

1. The matter is adjourned to 20 May 2008 at 9.30am.

2. The Court declares:

   (a)That the financial agreement entered into between the parties on 15 April 2002 is not binding on the parties pursuant to s.90G of the Family Law Act 1975.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 1308 of 2007

MR SMART

Applicant

And

MS SMART

Respondent

REASONS FOR JUDGMENT

Background

1. By way of an application filed on 26 February 2007, the husband sought various parenting orders with respect to the two children of the relationship.

2. The wife in her response filed on 5 April 2007, sought both competing parenting and property orders.  The property orders were, inter alia, to the following effect:

   a)That the Financial Agreement be set aside pursuant to s.90K of the Family Law Act (“the Act”);

   b)Further, or in the alternative to order a), the Financial Agreement be declared invalid, unenforceable or of no effect pursuant to s.90KA of the Act;

   c)Further, or in the alternative to orders a) and b), the Financial Agreement be declared to be not binding on the parties pursuant to s.90G of the Act.

3. On 23 August 2007, the parties agreed to have determined as a distinct question in the proceedings the issue as to whether or not the said Financial Agreement signed by the husband and the wife on 15 April 2002 constituted a binding agreement in accordance with the provisions of s.90G(1) of the Act. That was the limited nature of the matter listed for hearing before the Court on 1 November 2007.

4. The wife’s essential argument was that the said Financial Agreement did not contain, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates, has been provided, before the Agreement was signed by him or her, as certified in an annexure to the Agreement, with independent legal advice from a legal practitioner as to the matters set out in sub-paragraphs (i) to (iv) of s.90G(1)(b) of the Act and, accordingly, was not binding on the parties. This was made clear by the wife’s further and better particulars dated 20 June 2007.

5. The husband submitted that…