Suffolk and Suffolk

[2011] FamCA 863

FAMILY COURT OF AUSTRALIA

SUFFOLK & SUFFOLK [2011] FamCA 863

FAMILY LAW – PRACTICE AND PROCEDURE –  Binding financial agreement to be enforced as if it were an order of the Court – Registrar authorised to do all acts and sign all documents necessary to give effect to the binding financial agreement

Family Law Act 1975 (Cth) s 90C, s 90G, s 90KA(c), s 106A(1)

Family Law Rules 2004 Rule 7.03, Rule 7.12(c)

APPLICANT: Ms Suffolk

RESPONDENT: Mr Suffolk

FILE NUMBER: BRC 4720 of 2008

DATE DELIVERED: 31 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 31 October 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MS B
B Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. Pursuant to s 90KA(c) of the Family Law Act 1975 (Cth) (the Act) the binding financial agreement between the parties dated 3 March 2011 (the binding financial agreement) be enforced as if it were an order of the Court.

2. Pursuant to s 106A(1) of the Act a Registrar is appointed to do all acts and sign all documents necessary in the name of the husband to put into effect the binding financial agreement.

3. The wife’s costs of and incidental to her application in a case filed 23 August 2011, including her costs of today, are reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4720 of 2008

Ms Suffolk

Applicant

And

Mr Suffolk

Respondent

REASONS FOR JUDGMENT

1. On 4 September 2009 I declared that a financial agreement made by the parties dated 10 August 2004 was not a financial agreement binding on the parties under s 90G(1) of the Family Law Act 1975 (Cth) (the Act), ordered accordingly that it be set aside and gave extensive reasons for judgment at the time.

2. On 5 February 2010 I made orders in relation to costs applications concerning the issue of the validity of the financial agreement set aside and again gave extensive reasons for judgment.

3. The husband instituted an appeal against my declaration and order setting aside the financial agreement being Appeal NA73 of 2009. On 20 December 2010 May J ordered the husband to file submissions in the appeal by 25 February 2011 failing which the appeal be dismissed. Subsequently, there was a dismissal order on that ground.   

4. Since then the husband and the wife have entered into a binding financial agreement under s 90C of the Act (see also s 90G) dated 3 March 2011 a copy of which is annexure KMC1 to the affidavit of Ms B filed 23 August 2011.

5. Part of that agreement requires the listing for sale of certain specific properties in Country C and that the parties do all things necessary to effect the sales: clauses 2; 8.1.

6. The wife has an application in a case filed on 23 August 2011 seeking an order under s 90KA(c) of the Act that the binding financial agreement dated 3 March 2011 be enforced as if it were an order of the Court and an order under s 106A(1) of the Act appointing an officer of the Court to do all acts and sign all documents necessary in the name of the husband to put the terms of the binding financial agreement into effect.

7. The material in support of the application deposes to the husband being requested many times to sign documents and do things necessary to carry out the terms of the agreement, in particular the sale of the properties in Country C, but that to date he has not complied with signing necessary documents.

8. A further affidavit of Ms B filed 28 October 2011 deposes to a directions hearing before a Registrar on 23 August 2011 at which the husband appeared and, according to Ms B’s affidavit, said that he was sorting out his finances and that he would be attending his solicitors the following week to finalise the matter and comply with the binding financial agreement dated 3 March 2011. 

9. Since then however Ms B’s efforts to have that result have proved fruitless. 

10. The settlement date under the terms of the binding financial agreement is defined as 45 days from the date on which both parties have executed the Deed, that is, 45 days from 3 March 2011, which on any view now is a very long time ago and way beyond the anticipated settlement and finalisation date.

11. The husband has not appeared today.  The Court Officer called his name three times outside the door of the Court, returned to the courtroom and stated that there was no appearance, no response to the call.

12. As to service on the husband, in the earlier proceedings relating to the earlier financial agreement which I set aside, the husband was represented by Hirst & Co Family Solicitors.  That firm filed a Notice of Ceasing to Act on 3 March 2010 (folio 62).  At Part B, the information provided to the Court was that the husband’s last known residential address in Australia was D Street, Suburb E Queensland.

13. Ms B, in the further affidavit filed 28 October 2011, at par 4 deposes to service by post on the husband of the application in a case filed 23 August 2011 and supporting affidavit of herself filed on the same date under cover of a letter 25 August 2011.  She annexes as annexure KMC1 a true copy of that letter addressed to the husband at D Street Suburb E Queensland and containing the words:

    Please find attached by way of service sealed copies of the following:

    1.     Application in a case filed 23 August 2011;

    2.     Affidavit of [Ms B] filed 23 August 2011.

14. As the nature of the application was an application in a case, under Rule 7.03 Family Law Rules 2004 special service was not required and ordinary service is sufficient. Rule 7.12(c) provides that if special service is not required a document may be served on a person, if the person has not given an address for service, by sending it by post in a sealed envelope addressed to the person at the person’s last known address.

15. I am satisfied by way of the par 4 of Ms B's affidavit and annexure KMC1, subject to some short oral evidence which I will obtain from Ms B which I intended to do before commencement of these reasons, that there has been good service on the husband of the application in a case and supporting affidavit.

16. There is an affidavit of Ms F filed on 28 October 2011 relating to service on the husband of Ms B's affidavit filed on 28 October 2011.  However, I am not so concerned with service as to that latter affidavit, which in essence is a supplementary affidavit. Rather, the important matter is good service of the application in a case seeking the relief that I have specified the wife seeks and the primary affidavit in support of that, as to which I have determined there was good service.

17. Section 90KA(c) provides that in proceedings relating to a financial agreement the Court may order that the agreement or a specified part of it be enforced as if it were an order of the Court.

18. The husband’s default in compliance with the agreement, to which I have already referred, seems to me to be a proper basis to make such an order and I will do so. 

19. I will order further, as sought, under s 106A(1) of the Act that a Registrar be appointed to do all acts and sign all documents necessary in the name of the husband to put into effect the binding financial agreement.

20. As the husband already has defaulted, the Registrar is empowered as of now.

Notation

1. Ms B's oral evidence as to service given on 31 October 2011 has been placed on the Court file.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 31 October 2011.

Associate:     

Date:              7 November 2011