Wao and Chou (No. 2) - [2018] FamCA 542

FAMILY COURT OF AUSTRALIA

WAO & CHOU (NO. 2)

[2018] FamCA 542

FAMILY LAW – PROPERTY SETTLEMENT – Binding Financial Agreement – Where the husband seeks declaration that a financial agreement executed by the parties under s 90C of the Family Law Act 197 is not binding within the meaning of s 90G of the Act – Where the husband seeks that if the agreement is found to be binding, it be set aside under s 90K of the Act for reason of uncertainty – Where the husband seeks property orders in accordance with Part VIII of the Act – Where the wife asserts that the financial agreement is binding – Where the Court finds that the financial agreement is binding so as to oust its jurisdiction – Application dismissed.

Family Law Act 1975 (Cth) ss. 79, 90C, 90G, 90K

Abrum & Abrum [2013] FamCA 897
Carr v Blade Repairs Australia Pty Ltd (No 2) [2010] FCA 688
GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 (QB)
Glen-McLeod v Galloway [2012] NSW CA 368
Hoult & Hoult (2013) FLC 93-546
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Logan & Logan [2013] FamCAFC 151
Maye v Colonial Mutual Life Assurance Society (1924) 35 CLR 14
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
Philips v NZI Insurance Australia Ltd [1999] NSWSC 845

N. C. Seddon and R. A. Bigwood, Cheshire & Fifoot Law of Contract (Butterworths, 5^th ed, 1988)
K. C. T. Sutton, Insurance Law in Australia (Law Book Co, 2^nd ed, 1980)

APPLICANT:

Mr Wao

RESPONDENT:

Ms Chou

FILE NUMBER:

PAC 1883 of 2016

DATE DELIVERED:

24 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

McClelland J

HEARING DATE:

27 – 29 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Adams

SOLICITOR FOR THE APPLICANT:

Just in Case Legal

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Atunes Lawyers

Orders

The financial agreement signed by the parties and dated 16 March 2012 is declared to be a binding financial agreement pursuant to section 90C of the Family Law Act 1975 (Cth) (“the Act”).
The husband’s application filed on 3 October 2017 is dismissed.
By consent, within 14 days, the Applicant husband shall sign all documents and do all acts and things necessary to deliver up to the solicitor for the Respondent wife a Withdrawal of Caveat for the caveat (registered number …) registered over the property at E Street, Suburb F NSW …, being the whole of the land comprised in Certificate of Title Folio Identifier ….
By consent, in the event that the husband fails, neglects or refuses to comply with order 3 above within the time stated, then a Registrar of the Family Court of Australia is hereby appointed, pursuant to s 106A of the Act to execute the Withdrawal of Caveat in the name of the husband, so as to give force and effect to…

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.

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Details

Case: [2018] FamCA 542
Decision Date: 24 July 2018

CaseChat Overview and Summary

In *Wao and Chou (No. 2)*, McClelland J of the Family Court of Australia considered a dispute between a husband and wife concerning the enforceability of a financial agreement and the husband's subsequent application to withdraw a caveat. The wife sought to uphold the validity of a financial agreement made under section 90C of the *Family Law Act 1975* (Cth), while the husband had filed an application that was subsequently dismissed.

The primary legal issue before the court was whether the financial agreement dated 16 March 2012 was a binding financial agreement within the meaning of the Act. A related issue concerned the husband's application filed on 3 October 2017, which the court was required to determine.

McClelland J declared the financial agreement to be a binding financial agreement pursuant to section 90C of the Act. Consequently, the husband's application filed on 3 October 2017 was dismissed. The court also made orders by consent regarding the withdrawal of a caveat registered by the husband over a property. These orders stipulated that the husband must sign all necessary documents to deliver a Withdrawal of Caveat to the wife's solicitor within 14 days. In the event of the husband's failure to comply, a Registrar of the Family Court was appointed to execute the Withdrawal of Caveat in the husband's name. Liberty to apply in respect to costs was granted to the parties.

Orders

Orders of the court

The financial agreement signed by the parties and dated 16 March 2012 is declared to be a binding financial agreement pursuant to section 90C of the Family Law Act 1975 (Cth) (“the Act”).

The husband’s application filed on 3 October 2017 is dismissed.

By consent, within 14 days, the Applicant husband shall sign all documents and do all acts and things necessary to deliver up to the solicitor for the Respondent wife a Withdrawal of Caveat for the caveat (registered number …) registered over the property at E Street, Suburb F NSW …, being the whole of the land comprised in Certificate of Title Folio Identifier ….

By consent, in the event that the husband fails, neglects or refuses to comply with order 3 above within the time stated, then a Registrar of the Family Court of Australia is hereby appointed, pursuant to s 106A of the Act to execute the Withdrawal of Caveat in the name of the husband, so as to give force and effect to the order.

The parties be granted liberty to apply in respect to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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