WENTWORTH and Hamilton & Anor - [2014] FamCA 533

FAMILY COURT OF AUSTRALIA

WENTWORTH & HAMILTON AND ANOR

[2014] FamCA 533

FAMILY LAW – PROPERTY – Where the Applicant and First Respondent previously agreed for an order to be made by consent that the binding financial agreement was non-binding – Where the First Respondent seeks to re-agitate that the agreement is binding – Where the nature of the agreement has already been determined by the Court as non-binding – De facto relationship – Where the Applicant and the First Respondent seek orders for property division

FAMILY LAW – ACCRUED JURISDICTION – Whether the Family Court should exercise its accrued jurisdiction power – Whether a negligence claim against a solicitor acting for the Applicant and the First Respondent when they entered into the agreement is part of the single justiciable controversy between the Applicant and First Respondent – Considerations of relevant case authorities – No single justiciable issue found –Second Respondent removed as a party to the proceedings

Family Law Act 1975 (Cth) ss 90SM, 90UC, 90UJ

Fencott v Muller (1983) 152 CLR 570
Noll& Noll & Anor [2013] FamCAFC 24
Ruane & Bachman-Ruaneand Ors (Accrued Jurisdiction) [2012] FamCA 369
Valceski v Valceski [2007] NSWSC 440
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Warby & Warby [2001] FamCA 1469

APPLICANT:

Mr Wentworth

1st RESPONDENT:

Mr Hamilton

2nd RESPONDENT:

L Law Firm

FILE NUMBER:

PAC

4531

2012

DATE DELIVERED:

18 July 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

9 May 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE 1ST RESPONDENT:

Matthews Folbigg Pty Ltd

Mr Lethbridge SC &
Ms Eldershaw

SOLICITOR FOR THE 1ST RESPONDENT:

Warren McKeon Dickson Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Mr Batey

SOLICITOR FOR THE 2ND RESPONDENT:

Mullane & Lindsay

Orders

That the Second Respondent, L Law Firm, be removed as a party to these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wentworth & Hamilton and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4531 of 2012

Mr Wentworth

Applicant

And

Mr Hamilton

First Respondent

And

L Law Firm
Second Respondent

REASONS FOR JUDGMENT

The substantive proceedings before the Court relate to a same sex de facto property issue.
The Applicant, Mr Wentworth and the First Respondent, Mr Hamilton cohabited from 1999 until their separation in late 2011.
On 7 June 2011 the parties signed a purported Binding Financial Agreement (“BFA”) under section 90UC of the Family Law Act 1975 (Cth) (“the Act”) that makes provision for parties to a de facto relationship to enter into a BFA during the continuance of their relationship.
The BFA recited that the parties were in a de facto relationship and that the parties were purchasing as tenants in common a property at Locality A as to one third for Mr Wentworth and as to two thirds for Mr Hamilton.…

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: [2014] FamCA 533
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard proceedings between Mr Wentworth (Applicant) and Mr Hamilton (First Respondent), concerning property division following the breakdown of their de facto relationship. L Law Firm (Second Respondent) was also involved. The core dispute initially revolved around the validity of a Binding Financial Agreement (BFA) entered into by the parties. Mr Wentworth sought a declaration that the BFA was not binding, while Mr Hamilton initially sought to uphold its validity, later amending his response to claim damages against L Law Firm for negligence.

The primary legal issues before the Court were whether the Family Court should exercise its accrued jurisdiction to hear the negligence claim against L Law Firm, and consequently, whether L Law Firm should be removed as a party. A significant preliminary issue was the determination of the BFA's binding nature, which the parties later agreed by consent was not binding. This agreement resolved the initial dispute regarding the BFA's enforceability, paving the way for property division under section 90SM of the *Family Law Act 1975* (Cth).

The Court considered the principles of accrued jurisdiction, referencing High Court decisions such as *Re Wakim; Ex parte McNally* and *Fencott v Muller*, which establish that federal courts can hear non-federal claims if they form part of a single justiciable controversy with a federal claim. However, the Court found that the negligence claim against L Law Firm was not part of a single justiciable controversy with the property adjustment proceedings. The Court reasoned that the determination of the property settlement under section 90SM was a separate and distinct issue from the negligence claim, and the latter would only arise and be quantifiable after the former was resolved. Therefore, the Court concluded that the negligence claim did not attract accrued jurisdiction.

Consequently, the Court ordered that the Second Respondent, L Law Firm, be removed as a party to the proceedings. The substantive property adjustment proceedings between Mr Wentworth and Mr Hamilton would continue, but without the negligence claim against the law firm being heard within this jurisdiction.

Orders