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Wallace & Stelzer and Anor

Wallace & Stelzer and Anor

Case [2013] FamCAFC 199

Binding Financial Agreements

Independent Legal Advice

Retrospective Legislation

Statutory Interpretation

Credit Findings

Unconscionable Conduct

Interest Calculation

Appeal

Family Law

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FAMILY COURT OF AUSTRALIA

WALLACE & STELZER AND ANOR

[2013] FamCAFC 199

FAMILY LAW – APPEAL – PROPERTY – BINDING FINANCIAL AGREEMENTS – The effect of the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth) (“2009 amendments”) on financial agreements entered into between 14 January 2004 and 4 January 2010 – Whether the 2009 amendments operate retrospectively – Where it was submitted by the appellant that certain of the application and transitional provisions in Schedule 5 of the 2009 amendments (items 8 and 8A) were mutually inconsistent and so neither could apply, the effect being that the financial agreement in this case was not binding – Where the Full Court upheld the trial judge’s conclusion that items 8 and 8A could be construed in a manner which overcomes the inconsistency – Whether the trial judge erred in failing to find that the retrospective application of the 2009 amendments contravened Chapter III of the Constitution and the separation of powers doctrine as a direction by Parliament to apply the 2009 amendments retrospectively to pending proceedings – Where the Full Court held the retrospective application of the 2009 amendments did not direct the Court as to the manner and outcome of the exercise of its discretion in a particular case and thus were constitutionally valid – Whether the trial judge erred in relation to his findings as to the adequacy of the provision of legal advice to the parties – Where the Full Court found there was no proper basis to interfere with such findings by the trial judge – Whether the trial judge erred by rejecting the appellant’s claim of inducement to enter the financial agreement by fraud – Where the Full Court found the trial judge had not so erred – Whether the trial judge erred in relation to the period for which interest was payable – Where the Full Court found the trial judge had so erred – Appeal allowed in part in order to amend the period in which interest was payable – Appeal otherwise dismissed –Appellant to pay respondent’s costs of the appeal.

Acts Interpretation Act 1901 (Cth)
Family Law Amendment Act 2000 (Cth)
Family Law Amendment Act 2003 (Cth)
Family Law Act 1975 (Cth)
Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (Cth)
Matrimonial Causes Act 1959 (Cth)

Family Law Rules 2004 (Cth)
Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 (Cth)

Abebe v Commonwealth (1999) 197 CLR 510
Australian Building Construction Employees & Builders Labourers Federation v Commonwealth (1986) 161 CLR 88
Black & Black (2008) FLC 93-357
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Felton v Mulligan (1971) 124 CLR 367
Fender v St John-Mildmay [1938] AC 1
Hoult & Hoult (2013) FLC 93-546
Kostres & Kostres (2009) FLC 93-420
Liyanage v The Queen [1967] 1 AC 259
Logan & Logan [2013] FamCAFC 151
Minister for Immigration and Citizenship v SZJGV and Another (2009) 238 CLR 642
Polyukhovich v The Commonwealth of Australia and Anor

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 Wallace & Stelzer and Anor

Details

AGLC: Wallace & Stelzer and Anor [2013] FamCAFC 199
Case: [2013] FamCAFC 199
Decision Date

CaseChat Overview and Summary

The appeal by Mr Wallace (“the husband”) against orders made by Benjamin J on 11 February 2011 which contained a declaration that a financial agreement dated 29 September 2005 between the husband and Ms Stelzer (“the wife”) was “an enforceable financial agreement” under the Family Law Act 1975 (Cth) (“the Act”), together with orders consequential on that declaration, was heard by Finn, Strickland and Ryan JJ in the Full Court of the Family Court of Australia at Sydney. The essential questions in this case were what were the provisions of s 90G(1) which applied to determine whether or not the financial agreement in this case was binding, and were those provisions complied with? The husband and wife met in May 1998 and began living together in about May or June that year. Prior to the parties’ marriage in early October 2005, they executed a financial agreement, each in the presence of their own solicitor, respectively on 28 and 29 September 2005. Recital W in the agreement provides:W.Each party has sought, obtained and given due consideration to individual and independent advice from a separate qualified legal practitioner and prior to executing this Agreement as to matters including but not limited to:i.The effect of this Agreement on the rights of each party to apply for property and maintenance orders under the provisions of the Act and as amended and otherwise to seek relief at law and in equity.ii.The advantages and disadvantages at the time the advice was provided, for each party to enter into this Agreement.The trial judge found the parties separated on or about 22 May 2007.In August 2007 the husband commenced proceedings in this court for a declaration that the agreement is not binding and, in the alternative, an order pursuant to s 90K of the Act setting the agreement aside. Relying upon what she said was a binding financial agreement, the wife sought that the husband’s application be dismissed. The husband filed a Notice of Appeal on 7 March 2011, which has been amended twice. On condition that the husband paid the wife an amount of money, Benjamin J stayed Order 2 of his orders made 11 February 2011. In the context of an expedited hearing of the husband’s appeal against Benjamin J’s stay orders, consent orders in that application were entered on 19 May 2011. In the event, the hearing of the substantive appeal was delayed because the husband and wife variously sought extensions of time within which to comply with directions and, once the appeal was prepared, it took some time to achieve hearing dates convenient to all parties. The grounds of appeal were considered by the Full Court. The appeal was allowed in part in order to amend the period in which interest was payable. The appeal was otherwise dismissed. The husband pay the costs of the wife of and incidental to the appeal with such costs to be assessed in default of agreement.

Orders