Whatley & Whatley - [2007] FamCA 1671

FAMILY COURT OF AUSTRALIA

WHATLEY & WHATLEY

[2007] FamCA 1671

FAMILY LAW – PROPERTY SETTLEMENT – FINANCIAL AGREEMENT – Agreement made in 2005 styled “Section 90C Financial Agreement” found not to be a binding financial agreement under s 90G Family Law Act 1975 (Cth) – The requisite certificate guaranteeing legal advice had been obtained contained in the agreement was in accordance with the previous, but not current, version of s 90G Family Law Act 1975 (Cth) – Intention of Legislature requires strict compliance with the provision – Consequential to the deliberate alteration of the provision by the Legislature, the financial agreement is not a binding financial agreement under Part VIIIA Family Law Act 1975 (Cth) – Section 15AA Acts Interpretation Act 1901 (Cth), explanatory memorandum in relation to the change in s 90G and J & J [2006] FamCA 442 discussed

Family Law Act 1975 (Cth)
Acts Interpretation Act 1901 (Cth)

J & J [2006] FamCA 442

APPLICANT:

Ms Whatley

RESPONDENT:

Mr Whatley

FILE NUMBER:

PAC

637

2007

DATE DELIVERED:

23 November 2007

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

23 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Harris

SOLICITOR FOR THE APPLICANT:

Caldwell Martin Cox

COUNSEL FOR THE RESPONDENT:

Mr Campton

SOLICITOR FOR THE RESPONDENT:

Dignan & Hanrahan

Orders

The Court makes orders in terms of paragraph 2 of terms of settlement signed by the parties and marked as Exhibit Y.

IT IS NOTED that publication of this judgment under the pseudonym Whatley & Whatley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC637/2007

MS WHATLEY

Applicant

And

MR WHATLEY

Respondent

REASONS FOR JUDGMENT

This is in effect, if not in form, the joint application for a declaration that an agreement entered into by the parties on 26 July 2005 and styled “Section 90C Financial Agreement” is not a binding financial agreement within the terms of s 90G Family Law Act 1975 (Cth) (“the Act”).
The application, as it has been clarified with the benefit of the submissions of Counsels for the joint applicants, turns on a short but interesting point, that being whether the certificate attached to the agreement of 26 July 2005 complies with the requirements of s 90G of the Act so as to render the agreement binding within the terms of the provisions of Pt VIIIA of the Act. If that is the case, whilst the agreement remains valid and effective no orders for settlement of property under Pt VIII of the Act can be made, or, as both parties contend, if the agreement is not a binding financial agreement within the terms of Pt VIIIA of the Act, there is no such impediment to the making of consent orders pursuant to Pt VIII of the Act.
The position factually is that the certificate contains four matters which are identified as having been the subject of independent legal advice received by each party to the…

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 Whatley & Whatley

Details

AGLC: Whatley & Whatley [2007] FamCA 1671
Case: [2007] FamCA 1671
Decision Date: 23 November 2007

CaseChat Overview and Summary

In the matter of *Whatley & Whatley*, heard before Coleman J, the parties presented a dispute for the Court's determination. The precise nature of the dispute is not detailed in the provided text, but it involved a resolution that was ultimately agreed upon by the parties.

The central legal issue before the Court was the approval and formalisation of the terms of settlement reached between the parties. The Court was required to consider whether the agreed terms were appropriate and to give them legal effect through its orders.

Coleman J's reasoning focused on the parties' agreement. The Court applied the principle that where parties to litigation reach a mutually acceptable settlement, the Court's role is generally to endorse and give effect to that agreement, provided it is lawful and properly before the Court. The Court reviewed the terms of settlement, which were signed by the parties and presented as Exhibit Y.

The Court made orders in accordance with paragraph 2 of the terms of settlement, as signed by the parties and marked as Exhibit Y.

Orders

Orders of the court

The Court makes orders in terms of paragraph 2 of terms of settlement signed by the parties and marked as Exhibit Y.

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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