FAMILY COURT OF AUSTRALIA
| SULLIVAN & SULLIVAN | [2011] FamCA 752 |
| FAMILY LAW - BINDING FINANCIAL AGREEMENT – DECLARATION – Where the husband sought a declaration that the “Agreement” made between the parties dated 16 April 2003 is a s 90C financial agreement FAMILY LAW - BINDING FINANCIAL AGREEMENT – AGREEMENT – Where the husband contended the agreement was a financial agreement under s 90C and/or 90B – Where the wife contended that there was no agreement existing between the parties at law and that there was no financial agreement – Whether the “Agreement” dated 16 April 2003 constituted an agreement pursuant to contractual principles – Whether there was offer and acceptance – Whether there was an agreement between the parties at law and if so was it a financial agreement under s 90B or s 90C of the Act FAMILY LAW - BINDING FINANCIAL AGREEMENT – RECTIFICATION – Where the husband sought that the “Agreement” made between the parties dated 16 April 2003 be rectified to be a s 90C financial agreement – Where the husband contended the “Agreement” erroneously referred to s 90B – Where the wife signed the “Agreement” prior to marriage and the husband signed after marriage – Whether the parties had a common intention to enter into a s 90C financial agreement – Whether there was a common mistake or unilateral mistake – Whether the “Agreement” could be rectified to be a s 90C financial agreement FAMILY LAW - BINDING FINANCIAL AGREEMENT – SECTION 90G – Where the husband in seeking a declaration under s 90G(1B) argued that the “Agreement” complied with s 90G(1) as amended by the provisions of the Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth) – Discussion of the form of s 90G applicable to the “Agreement” – Whether the “Agreement”, if able to be rectified, could comply with 90G(1), and s 90G(1)(b), or in the alternative should be declared binding under s 90G(1A) |
| Acts Interpretation Act 1901 (Cth), s 23(b) Family Law Act 1975 (Cth), ss 4, 71A, 90B, 90C, 90D, 90G, 90G(1)(b), 90G(1A)(b), 90G(1A)(c), 90KA, 90K Family Law Amendment Act 2000 (Cth), s 10 Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth), Items 2, 4, 4A, 8, 8(4), 8(6), 8(7), 8A |
| ASIC v Fortescue Metals Group Ltd & Anor (2011) 190 FCR 364; [2011] FCAFC 19, discussed Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, applied |
Continue reading Sullivan & Sullivan
Sign in free to access the full text
- AGLC
- Sullivan & Sullivan [2011] FamCA 752
- Case
- [2011] FamCA 752
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the agreement constituted a "financial agreement" under the Family Law Act 1975 (Cth), specifically in relation to sections 4, 71A, 90B, 90C, and Part VIIIA. Further, the court had to ascertain if the agreement was enforceable and capable of rectification, and whether it was binding pursuant to section 90G of the Act, as amended. The court also needed to decide if the agreement precluded the application of Part VIII of the Act under section 71A.
Young J reasoned that the agreement did not meet the statutory requirements to be considered a financial agreement. Consequently, it was found to be unenforceable and not capable of rectification. The court determined that the agreement was not binding under section 90G, nor did it preclude the application of Part VIII of the Family Law Act 1975. The applicant husband's initiating application was dismissed, while the respondent wife's application for property settlement under section 79 was listed for further directions. Certain other applications by the respondent wife were also listed for the same date, and her response to the initiating application was otherwise dismissed. The parties were ordered to file written submissions on costs.
Orders
Orders of the court
IT IS ORDERED:
1.
THAT the “Agreement” dated 16 April 2003 between the Applicant Husband and the Respondent Wife is not a “financial agreement” within the meaning of the sections 4, 71A, 90B, 90C and Part VIIIA of the Family Law Act 1975 (Cth).
2.
THAT the “Agreement” dated 16 April 2003 between the Applicant Husband and the Respondent Wife is unenforceable and not able to be rectified.
3.
THAT the “Agreement” dated 16 April 2003 between the Applicant Husband and the Respondent Wife is not binding pursuant to section 90G of the Family Law Act 1975 (Cth) as amended by the Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth).
4.
THAT the “Agreement” dated 16 April 2003 between the Applicant Husband and the Respondent Wife does not, pursuant to section 71A, preclude the application of Part VIII of the Family Law Act 1975 (Cth).
5.
THAT the Applicant Husband’s Initiating Application filed 6 December 2010 be dismissed.
6.
THAT the Application of the Respondent Wife, in order 3 of the Response to Initiating Application filed 4 May 2010, for a property settlement pursuant to section 79 of the Family Law Act 1975 (Cth), be listed before Young J on Thursday 8 December 2011 at 10.00 a.m. for further directions and case management.
7.
THAT the Applications of the Respondent Wife in the Application in a Case filed 1 June 2011 seeking interim orders associated with section 79 proceedings also be listed before Young J on 8 December 2011.
8.
THAT the Respondent Wife’s Response to Initiating Application filed 4 May 2010, be otherwise dismissed.
9.
THAT the parties file and serve written submissions, addressing the issue of the payment and quantum of costs within seven (7) days (limited to no more than 5 pages).
IT IS CERTIFIED
10.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.