Woon and Xie

[2019] FamCA 1042

FAMILY COURT OF AUSTRALIA

WOON & XIE [2019] FamCA 1042

FAMILY LAW – PROPERTY SETTLEMENT – Financial Agreements – Financial Statements – where the husband opposed a direction to file a financial statement – where the court is being asked to determine whether a financial agreement is binding or should be set aside – where in order to determine that question the court does require an understanding of the parties’ financial circumstances at the time of the hearing – where the order is made for both parties to file financial statements in preparation for a final hearing on the threshold issue.

Family Law Act 1975 (Cth) s 90K(1)
Family Law Rules 2004 (Cth) r 13.02

In the Marriage of Fryda & Johnson (No 2) (1981) FLC 91-058; (1981)

APPLICANT: Ms Woon

RESPONDENT: Mr Xie

FILE NUMBER: MLC 5204 of 2019

DATE DELIVERED: 12 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 12 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paterson

SOLICITOR FOR THE APPLICANT: Marshalls and Dent and Wilmoth

SOLICITOR FOR THE RESPONDENT: Herald Legal

Orders

IT IS ORDERED THAT

1. Documents produced by TJ lawyers pursuant to the subpoena issued 9 July 2019 be released for inspection and photocopying.

IT IS FURTHER ORDERED THAT

1. The wife’s application seeking to set aside the Binding Financial Agreement signed 3 August 2016 be listed for hearing before Justice Macmillan at 10.00 am on 14 October 2019 (as a 2 day matter).

2. By 4.00 pm on 30 August 2019 the applicant file and serve upon the other party:

   (a)the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave);

   (b)a statement of particulars setting out in detail the grounds upon which the wife relies in support of her application; and

   (c)a financial statement that complies with Chapter 13 of the Family Law Rules.

3. By 4.00 pm on 20 September 2019 the respondent file and serve upon the other party:

   (a)the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and

   (b)a financial statement that complies with Chapter 13 of the Family Law Rules.

4. By 4.00 pm on 4 October 2019 the applicant file and serve any affidavit in reply to the affidavits of the respondent.

5. No party file any further material other than as provided by these orders without leave of the Court.

6. If either party takes objection to any evidence of the other party:

   (a)any objection be taken no later than 14 days prior to the trial by service of written notice on the solicitor for the other party;

   (b)the party so served shall notify the objecting party in writing no later than 7 days prior to the trial of which objections so taken are the subject of agreement and which require determination.

7. All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

8. All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

9. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

10. The applicant pay all setting down and trial fees by 4.00 pm on 4 October 20149 or obtain the requisite waiver thereof.

11. The practitioners and/or the parties in the event that they are not legally represented file electronically to … and serve upon all other parties by 4.00 pm on 10 October 2019 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of objections to evidence upon which rulings are required, if any; and

    (c)a bullet-point summary of argument in relation to the legal and factual issues in dispute.

12. Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.

13. The practitioners and/or the parties in the event that they are not legally represented be at liberty to approach Justice Macmillan’s Associate via email for an urgent listing of the matter if required.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5204 of 2019

Ms Woon

Applicant

And

Mr Xie

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this case, I am asked to determine the threshold issue of whether or not a financial agreement the parties entered into on 3 August 2016 is binding, and in the alternative, if it is binding, whether it should be set aside.

2. In setting the matter down for that hearing before me, I am proposing to make orders for the parties to file Affidavits of evidence-in-chief. When I raised or indicated that I was proposing to make an order requiring the parties to file a Financial Statement, the husband opposed my doing so.

3. I stood the matter down to enable the husband’s solicitor to consider the position and to enable him to make some submissions to me with respect to his client’s position. The husband’s solicitor referred me to rule 13.02 of the Family Law Rules 2004 (Cth) which, as he says, provides that:

   The division of the rules which relates to the duty of disclosure in financial cases applies to the extent that a parties’ financial circumstances are relevant to the issues in dispute.

4. He submitted that the husband’s financial circumstances are not relevant to the matters that I must determine and that until the financial agreement is either found to not be binding or is set aside, there are no financial proceedings between these parties which would require the husband to file a Financial Statement. 

5. The power to set aside a binding financial agreement is set out in s 90K(1) of the Family Law Act 1975 (Cth) that reads as follows, thereafter setting out the grounds for setting aside agreement:

   A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that …

6. What that means is that even if the Court is satisfied that one of the grounds referred to is established, it has a discretion as to whether or not that agreement should be set aside.  It is clear from the authorities and I refer in particular to the case of In the Marriage of Fryda & Johnson (No 2) (“Fryda”) that one of the matters that the Court might look at with respect to whether it should exercise that discretion, is the parties’ financial circumstances at the time that the application is being determined.

7. For example the Court might determine there would be no difference to the parties’ financial circumstances, even if the agreement were to be set aside.  But, in order to make that assessment, the Court does require some understanding of the parties’ financial circumstances at the time of the hearing.

8. In those circumstances, I propose to require the parties to both file a Financial Statement.  

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 12 August 2019.

Associate: 

Date:  14 February 2020