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 out in his Case Outline filed 8 September 2021, his written submissions in reply filed 27 October 2021, and submissions on section 90E of the Act filed 15 December 2021.
The Husband (through his counsel) indicated that the Husband only relied upon the terms of the financial agreement itself.
The Husband submitted that the above Affidavit material relied upon by the Wife was inadmissible to assist the Court in construing the legal effect of the financial agreement. He submitted that the parol evidence rule effectively prevented the Court having regard to such Affidavit material.
The financial agreement was finally executed by the Wife on 21 October 2013. It was common ground between the parties that they were married on 22 November 2013.
At the outset of the Interim Hearing, the Court queried with the parties whether the financial agreement was entered into by the parties pursuant to section 90B or 90C of the Act. The front page of the financial agreement referred to section 90B, whereas Recital F in the financial agreement referred to section 90C.
In view of Recital E providing that the parties intended to marry in 2013 and which stated, “and this agreement will commence on the date of marriage”, and in view of Recital F stating:
In order to arrange their property affairs the parties have agreed to enter into this agreement under the provisions of section 90C of the Family Law Act 1975 to deal with the division of their property, financial resources, liabilities and their maintenance in the event of the breakdown of their relationship,
the Court will treat the financial agreement as having been entered into by the parties under section 90C of the Act.
Because it is clear from the terms of the financial agreement that the parties at least intended to deal with their property in the event of the breakdown of their marriage, the Court finds that it is likely that the financial agreement is a “financial agreement” under section 90C of the Act; in this regard, the Court refers to the Recitals, and clauses 2, 3, 4, and in particular clause 6 of the financial agreement.
Recital G provided:
This agreement is conditional upon the marriage taking place and is intended to deal with the whole of the property and financial resources of the parties now and in the future and their maintenance in the event of the breakdown of their marriage without resort to litigation.
Recital H provided:
The parties intend the terms of this agreement to be given effect by any Court having jurisdiction to determine financial matters (property and maintenance) in issue between (the Husband and Wife) pursuant to the Family Law Act 1975.
The Husband submitted that, in respect to the financial agreement, construed as a whole, it was clear that the parties intended the financial agreement to address all financial matters between them including both property and spousal maintenance.
The Court queried with the Husband that whereas Recitals F and G suggested that the parties intended the financial agreement “to deal with” not only the division of their property but “their maintenance”, on one view the “Operative Part” of the financial agreement did not “deal with” spousal maintenance at all, with the Court observing that, in particular, clause 6 of the financial agreement headed, “Division of property in the event of breakdown of the marriage”, only dealt with the “property and financial resources of the parties” which were to be divided in a particular manner as set out in clause 6. In this context, and again, the Court observes that in the Operative Part of the financial agreement there was no express reference to spousal maintenance.
The Husband’s counsel responded by submitting that, according to legal principle, where Recitals in an agreement were clear (and in this financial agreement, it was submitted by the Husband that it was clear that the parties intended their financial agreement to deal with both property and spousal maintenance) and the operative part of the agreement was not clear, the Recitals prevail. The Husband’s counsel submitted, rhetorically, if this was not the case, what was the purpose of the parties Recitals (which expressly referred to “their maintenance”).
DISCUSSION
Part VIII of the Act contains provisions relating to property, spousal maintenance and maintenance agreements. Spousal maintenance provisions include subsection 72 and 74 of the Act, and property provisions include section 79 of the Act.
Section 71A of the Act provides:
This Part does not apply to certain matters covered by binding financial agreements
(1)This Part does not apply to:
(a)Financial matters to which a financial agreement that is binding on the parties to the agreement applies; or
(b)Financial resources to which a financial agreement that is binding on the parties to the agreement applies.
(2)Subsection (1) does not apply in relation to proceedings of a kind referred to in paragraph (caa) or (cb) of the definition of matrimonial cause in subsection 4(1).
The Court observes that in the Butterworth’s Australia Family Law LexisNexis annotated legislation volume 1 looseleaf service, at page 1369, in relation to section 71A of the Act, the following commentary is provided:
This section makes it clear that where such an agreement is binding under Part VIIIA, the powers contained in Part VIII do not apply to financial matters or resources to which such an agreement applies. Where a binding agreement does not deal comprehensively with all aspects of the parties’ financial affairs, the Court’s powers under Part VIII remain, but the terms of any such agreement will be relevant to the exercise by the Court of its powers under Part VIII: see section 75(2)(p).
Again, the Husband submitted that, when considering the terms of section 71A of the Act, on a proper construction of the financial agreement of the parties, the “financial matters” (which the section 4 definitional section of the Act defined as, inter alia, the parties’ “maintenance”) to which the financial agreement of the parties applied included spousal maintenance. The Wife submitted to the contrary.
Neither party at the Interim Hearing referred to section 90E of the Act, which is contained in Part VIIIA of the Act which relates to “Financial Agreements”. However, they later provided written submissions in relation to section 90E at the request of the Court.
Section 90E provides:
Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children.
(1)A provision of a financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies:
(a)The party, or the child or children, for whose maintenance provision is made; and
(b)The amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be.
In relation to section 90E of the Act, the Court refers to the recent appellate decision of Strickland J in Ellerton & Jennings [2021] FedCFamC1A 39, in particular His Honour’s discussion of section 90E in the context of the cross-appeal in that case (see paragraphs 27 and following). The Court would observe that a distinguishing feature of the binding financial agreement in Ellerton was that it contained an express reference in the operative section of the agreement there that the parties, inter alia, acknowledged that “no provision of spousal maintenance is necessary or desired” (clause 19) and “Both parties fully and freely waive any and all rights or claims they may now or in the future have to spousal maintenance under the Family Law Actt 1975.." (clause 20). In the subject agreement there is no reference in the operative part of the agreement to spousal maintenance.
Again, the Husband’s contention was that the Recitals in the parties’ financial agreement reflected the parties’ clear intention that the financial agreement would deal with both property and spousal maintenance. He submitted that when the financial agreement was read as a whole, the parties intended to deal with maintenance in the financial agreement by making no provision for it.
The Court is of the view that on a proper construction of the parties’ financial agreement, and in this respect the Court does not have regard to any extraneous Affidavit material of either party apart from the financial agreement itself (thus applying the parol evidence rule), that the financial agreement does not prevent the Wife from pursuing her spousal maintenance Applications.
The operative part of the financial agreement simply fails to deal with prospective spousal maintenance Applications. Whilst the drafter of the financial agreement referred to the parties’ “maintenance” in the Recitals of the financial agreement, with certain of those Recitals stating that the parties intended to “deal with…their maintenance”, the drafter failed to deal with spousal maintenance in the operative part of the financial agreement, including in clause 6. The Court does not accept the husband’s submission that when the financial agreement is read as a whole, the parties intended to deal with maintenance in the financial agreement by making no provision for it. Contrary to the husband’s submissions, in these circumstances, the Recitals do not save the husband’s position that the financial agreement effectively prevented the parties from pursuing spousal maintenance. It was necessary for the operative part of the financial agreement to deal with the spousal maintenance issue which it failed to do.
It follows from the above conclusion that there is no provision in the operative part of the financial agreement that relates to maintenance and s90E has no application.
Accordingly, the Court will make a declaration (inter alia, see section 80(1)(k) of the Act) that the parties’ financial agreement does not prevent the Wife from pursuing any Application for spousal maintenance, and the proceedings will be referred back to Senior Registrar Tran for determination of the Wife’s spousal maintenance Applications (see Senior Registrar Tran’s Notation of 10 May 2021).
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 27 January 2022
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