Suffolk and Suffolk (No. 2)

[2009] FamCA 917

FAMILY COURT OF AUSTRALIA

SUFFOLK & SUFFOLK (NO. 2) [2009] FamCA 917

FAMILY LAW – FINANCIAL AGREEMENT - Whether financial agreement binding – Strict compliance – Whether after the agreement was signed the original agreement or a copy of it was given to the wife – Statutory provision not complied with – Financial agreement not binding

Family Law Act 1975 (Cth) s90G1(b) and (e)

3D Scaffolding Pty Ltd v Commissioner of Taxation [2009] FCAFC 75
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Black & Black (2008) FLC 93-357; [2008] FamCAFC 7
Browne v Dunn [1894] 6 R 67
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) 229 ALR 136; [2006] FCA 446
Cook’s Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QSC 179
J and J [2006] FamCA 442
Jones & Dunkel (1959) 10l CLR 298
LC v TC (1998) FLC 92-803
Whatley & Whatley [2007] FamCA 1671

APPLICANT: Ms Suffolk

RESPONDENT: Mr Suffolk

FILE NUMBER: BRC 4720 of 2008

DATE DELIVERED: 4 September 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 15 and 22 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hall

SOLICITOR FOR THE APPLICANT: Chan Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hackett

SOLICITOR FOR THE RESPONDENT: Hirst & Co

Orders

IT IS DECLARED

1. The financial agreement made by the parties and dated 10 August 2004 is not a financial agreement binding on the parties under s90G(1) of the Family Law Act 1975 (Cth).

AND IT IS ORDERED ACCORDINGLY

1. The financial agreement made by the parties and dated 10 August 2004 is set aside. 

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: BRC4720/2008

MS SUFFOLK

Applicant

And

MR SUFFOLK

Respondent

REASONS FOR JUDGMENT

1. The parties married in August 2004.  They separated in mid 2007.

2. On 10 August 2004 the parties signed a financial agreement, expressed to be pursuant to s90B of the Family Law Act1975 (Cth) (the Act).

3. Section 90G(1) of the Act provides, and as at that date provided:

   (1)A financial agreement is binding on the parties to the agreement if, and only if:

   (a)the agreement is signed by all parties; and

   (b)the agreement contains, in relation to each spouse 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 following matters:

   (i)      the effect of the agreement on the rights of that party;

   (ii)the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and

   (c)the annexure to the agreement contains a certificate signed by the person providing the…