FAMILY COURT OF AUSTRALIA
WALLACE & STELZER [2011] FamCA 54
FAMILY LAW – PROPERTY – FINANCIAL AGREEMENTS – Consideration of Financial Agreements under part VIIIA of the Family Law Act - Constitutional validity of Federal Justice Systems Amendment (Efficiency Measures) Act (No.1) 2009 - Scope and nature of that amendment to the Family Law Act - s 90G - Equitable rectification of a Financial Agreement - allegations of fraud and/or unconscionable conduct - interest.
Family Law Act 1975 (Cth) ss 71A, 79, 86, 86A, 87, 90G(1A), 90G(1)(b), (c) and (ca)
Family Law Amendment Act 2000 (Cth)
Family Law Amendment Act 2003 (Cth)
Family Law Rules 2004 (Cth)Judiciary Act 1903 (Cth) s 78A
Federal Justice Systems Amendment (Efficiency Measures) Act (No.1) 2009 (Cth)
Supplementary Explanatory Memorandum to the Federal Justice System Amendment (Efficiency Measures) Bill (No.1) 2008 (Cth)
New South Wales Barristers’ Rules (NSW)
The Australian Constitution 1901(Cth) s 51 (xxii) and (xxxi)
APPLICANT: Mr Wallace
RESPONDENT: Ms Stelzer
INTERVENER: Attorney-General for the Commonwealth of Australia
FILE NUMBER: SYC 5433 of 2007
DATE DELIVERED: 31 January 2011
PLACE DELIVERED: Hobart
PLACE HEARD: Sydney
JUDGMENT OF: Benjamin J
HEARING DATE: 23, 24, 25 & 26 August and 11, 12 & 13 October 2010 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Rayment Q.C. with
Mr Washington
SOLICITOR FOR THE APPLICANT: Mr Hall, Hall & Partners
COUNSEL FOR THE RESPONDENT: Mr Lethbridge SC with
Mr Gould (for parts of the trial) and Ms Barker (on 26 & 27 August 2010)
SOLICITOR FOR THE RESPONDENT: Ms Searle, Searle & Associates
COUNSEL FOR THE ATTORNEY -
GENERAL:
Mr Orr S.C.
SOLICITOR FOR THE ATTORNEY -
GENERAL:
The Australian Government Solicitor
Barton ACT 2600
Orders
1.A DECLARATION that the financial agreement dated 29 September 2005 between Mr Wallace (the husband) and Ms Stelzer (the wife) is an enforceable financial agreement under the provisions of…
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- Wallace and Stelzer [2011] FamCA 54
- Case
- [2011] FamCA 54
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the financial agreement dated 29 September 2005 was an enforceable financial agreement under the *Family Law Act 1975* (Cth). Arising from this, the Court also considered consequential orders regarding the payment of a significant sum of money by the husband to the wife, including the calculation of interest, and the wife's subsequent resignation from her roles in S Pty Ltd and assignment of her interest in property at W to the husband.
Benjamin J declared the financial agreement dated 29 September 2005 to be an enforceable financial agreement under the *Family Law Act 1975* (Cth). Consequently, the Court ordered the husband to pay the wife the sum of $3,150,000, plus specified interest calculated from 13 July 2007. The Court also made orders for the wife to resign from her positions in S Pty Ltd and assign her interest in the property at W to the husband upon his compliance with the payment order, with the husband to be liable for any associated taxes and duties. All other outstanding applications were dismissed.
Orders
Orders of the court
1. A DECLARATION that the financial agreement dated 29 September 2005 between Mr Wallace (the husband) and Ms Stelzer (the wife) is an enforceable financial agreement under the provisions of the Family Law Act 1975 (Cth).
2. A CONSEQUENTIAL ORDER that within twenty eight (28) days from the date of this order, the husband pay to the wife the amount of $3,150,000 plus interest calculated as follows:-
(i) From 13 July 2007 to 1 March 2010 at a rate of 6.5 per cent per annum.
(ii) From 2 March 2010 to the date of payment interest in accordance with the rate determined pursuant to the Family Law Rules 2004 (Cth).
(iii) Interest is to be calculated on $3,250,000 until the date the husband paid $100,000 to the wife (in two sums each of $50,000), including part paid pursuant to orders made by this Court in about 23 August 2010 and thereafter interest on the sum of $3,150,000 until paid.
3. Leave is given for the parties or either of them to apply in respect of order 2 in terms of the date of payment of the two amounts of $50,000. Such leave to apply for twenty (28) days from the date of this order.
4. Upon the husband complying with orders 1 and 2 above, the wife shall forthwith resign from her position as trustee and in respect of any office she holds in S Pty Ltd, in regard to the property at W and the wife shall, as soon as is practicable after that time, sign all documents and do all things to assign any interest she has in that property to the husband or his nominee. The husband to be liable for and shall indemnify the wife against any taxes and/or duties arising from this order.
5. All outstanding applications, except for costs, are dismissed.
6. This matter be removed from the list of cases requiring determination.
7. All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
IT IS CERTIFIED
8. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel and senior counsel to attend.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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