Wallace & Stelzer and Anor

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.