Viswan & Parveen - [2022] FedCFamC2F 56

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Viswan & Parveen [2022] FedCFamC2F 56

File number(s): PAC 2990 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 27 January 2022

Catchwords: FAMILY LAW – Whether financial agreement prevents wife from pursuing spousal maintenance application – declaration made that wife not so prevented.

Legislation: Family Law Act 1975 (Cth), ss.4, 90B, 90C, 90E, 71A, 72, 74, 75, 79, 80(1)(k)

Cases cited: Ellerton & Jennings [2021] FedCFamC1A 39

Division: Division 2 Family Law

Number of paragraphs: 27

Date of last submission/s: 28 October 2021

Date of hearing: 28 October 2021

Place: Parramatta

Solicitor for the Applicant: Mr Prakash

Counsel for the Respondent: Mr Gunning

ORDERS

PAC 2990 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS VISWAN

Applicant

AND:
MR PARVEEN

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

27 JANUARY 2022

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Declare that the parties’ financial agreement entered into by them in about September 2013, a copy of which is annexed to the Wife’s Affidavit filed 27 June 2019, does not prevent the Wife from pursuing an Application for spousal maintenance.
2.The Wife’s Applications for spousal maintenance are forthwith referred to Senior Registrar Tran for determination.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Viswan & Parveen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:

This Court held an Interim Hearing on 28 October 2021 to determine whether or not a financial agreement entered into by the parties in October 2013 legally prevents the Wife from pursuing a duly filed spousal maintenance Application against the Husband. The Wife contends that the agreement does not so prevent her with the Husband contending to the contrary.
The Wife’s interim spousal maintenance Application was initially set out in her Initiating Application filed 27 June 2019 (paragraph 31). She later filed an Amended Application in a Case on 12 February 2021 seeking spousal maintenance.
The Wife relied upon the documents and submissions set out in her Case Outline filed 25 October 2021, together with further written submissions relating to section 90E of the Family Law Act 1975 (Cth) (“the Act”) sent to the Court in about mid December 2021.
The Husband relied upon the documents and submissions set…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Viswan & Parveen

Details

AGLC: Viswan & Parveen [2022] FedCFamC2F 56
Case: [2022] FedCFamC2F 56
Decision Date

CaseChat Overview and Summary

The case of Viswan & Parveen involved a dispute regarding the enforceability of a financial agreement and whether it precluded the Wife from pursuing a spousal maintenance application against the Husband. The matter was heard by Judge Newbrun in the Federal Circuit and Family Court of Australia (Division 2) and was decided on 27 January 2022.

The primary legal issue was whether the financial agreement executed by the parties in 2013 prevented the Wife from seeking spousal maintenance under the Family Law Act 1975 (Cth). The Husband argued that the agreement, which referred to dealing with "their maintenance," precluded such an application, while the Wife contended that the agreement did not address spousal maintenance and therefore did not prevent her from making an application.

Judge Newbrun applied the parol evidence rule and focused solely on the terms of the financial agreement itself to determine its legal effect. The Court concluded that although the Recitals in the agreement indicated the parties intended to address maintenance, the operative part of the agreement did not deal with spousal maintenance. Therefore, the agreement did not prevent the Wife from pursuing a spousal maintenance application. The Court also noted that section 90E of the Act, which requires specific provisions for spousal maintenance in financial agreements, was inapplicable as the agreement did not include such provisions.

As a result, the Court declared that the financial agreement did not prevent the Wife from pursuing a spousal maintenance application. The case was referred to Senior Registrar Tran for the determination of the Wife's spousal maintenance applications.

Orders