Legal Issues - Copyright and Anonymity

1 Copyright in any comment remains the property of George Brzostowski SC. Copyright in any quotation from a judgment, is the copyright of the relevant Court, and/or the relevant State or the Commonwealth as the case may be.

2 From time to time this page will contain articles, critiques or discussions of judgments. The names of the parties will be anonymised to protect their privacy, unless the Court has already approved anonymised names, but the references to citations will be actual Court, Austlii or any publisher's citations for those cases.

In March 2015 I prepared a paper on the impact of how the Stanford decision works, or has been implemented. In the interest of brevity a shortened version was used in the CPD seminar, but there was a lot of other useful material which is included in the following downloadable PDF link. The matters covered go beyond what happened in Stanford, and explore the emergence that practitioners and litigants in Family Law will find increasingly difficult. Do not be distracted by remarks made by first instance judicial officers about freedom to ignore statements that are mere "obiter". See the discussion stemming from the High Court decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd. Will appeals against adverse decisions under sec 79(2) become unreviewable upon appeal? Will there be a refreshed approach to "Kennon" type cases where there has been domestic violence? Can an order ignoring significant or prolonged domestic violence, ever be "appropriate" under sec 79(1)? Download PDF of article by clicking the link "ACT Bar Association Seminar CPD March 2015 Full Version" There will be further examination of some interesting decisions in an up-coming article called "Discretion sans frontiers".

Full Court of Family Court allowed appeal from Federal Magistrate where the Magistrate made several errors in assessing post-separation contributions. Full Court gives guidance on issue of indirect contributions to other party's economic capacity. Case of long separation, but principles are still widely applicable. Full Court is not confined to pleaded grounds of appeal. Download PDF of article by clicking the link "A Warning to All - Marsh & Marsh"

Article following High Court decision on 12 November 2012 in Stanford and Stanford exploring operation of sec 79 of Family Law Act, and requirements for compliance with common law, equitable principles and Statute. Scope of abuse of jurisdiction where there is no intentional separation. Law reform appears to be needed. Special position of involuntary separation on grounds of illness. Dementia and Family Law. Download PDF of article "Where there is a Will there is a Relative"

A recent article on problems with the treatment of DFRDB pensions in payment phase, and problems with splitting superannuation, follow the link to download a PDF of "Nature, Form, Charactersitics and Genetics of Pension Superannuation - Should Size Matter?"

Following the above article being prepared, the Full Court handed down a decision in Palmer & Palmer (anonymised names) [2012] FamCAFC 159 which has prompted the discussion in the next Article called "Unrecognised Genetics of DFRDB and MSBS Benefits". To download a PDF of that discussion, click the highlighted link.

S v F [2012] FamCA 510

Delivered 6 July 2012 by Murphy J added on 18 July 2012

Particularly interesting, illustrative, clear and informative judgment from Justice Murphy with due recognition of the husband’s outstanding entrepreneurial capacity to establish a successful business while recognizing the wife’s contribution to their joint ventures. It is a powerful judgment emphasizing the importance of the wide discretion reposed in the Courts by Statute. Although it is a single judge decision, it is a decision by Justice Murphy. It deserves to be read carefully for the help that will be found in it. These notes and extracts are pointers to what readers will find in the judgment itself.

After a long marriage of about 29 years, with 3 adult children at time of trial, the parties were spectacularly successful (pool of something between $32.3M and $39.8M). They each retained their 84% shareholding in their building enterprise in order to preserve that asset, and the family home (described as an “extraordinary homage to conspicuous wealth” was to be sold. The assets were to be divided as to 60% to the husband and 40% to the wife. No further adjustment was made under sec 75(2).

The husband’s case was that he had made “special”, “unique” and “out of the ordinary” contributions and he sought a division of 70% in his favour and 30% to the wife. The wife argued that their contributions to the “economic, domestic and emotional” partnership was such as to make it unjust and inequitable to distinguish between their contributions.

Murphy J considered a number of the leading catch-phrases or epithets found in numerous judgments, but not in the Statute, and made many helpful observations, before coming to an approach that can be of assistance, and drawing upon a classic phrase used by Justice Coleman.

19 Thus, while expressions such as “special skills” or “special contributions” might be convenient enough as descriptors designed to compare the contributions in one case with those in another, s 79 makes no such reference, nor embraces any such concept, save that it mandatorily requires an evaluation of the matters set out in s 79 in arriving at a settlement of property between the particular parties to the particular marriage in all of its particular circumstances.

20 Axiomatically, then – and contrary to the manner in which many cases of this type are frequently prepared and conducted – the Court’s task is not to assess the evidence with a view to arriving at a finding as to whether a party is possessed of, or has exercised, “special skill” or “special talents” with the result that such a finding is productive of a particular finding, or range of findings in respect of contribution. To approach the matter in that way is to fetter the “extraordinarily wide” [7] discretion inherent in the section.

21 Similarly, the use of an expression such as “marriage partnership” is convenient as a descriptor both of what is an axiomatic component of “marriage”[8] and of what earlier authority has recognised within the context of s 79.[9] It is also convenient as a reminder that the parties to a marriage – in particular a long marriage – contribute to it (as s 79 specifically recognises) in a miscellany of different ways which, taken together, make up the union. It is also convenient as a reminder that non-direct or home-maker contributions are to be given the real weight which authority demands.

22 But, the marriage partnership, too, is not found in terms within s 79 and nor is the Court’s task to arrive at that finding so as to be a pointer to a particular result or range of results.

23 It might be noted that the notion of a marriage partnership has also been referred to in earlier authorities in the specific context of an evolving social milieu that recognises that the roles of men and women within marriage has evolved over time and was, for example, different in 1993 (when F & F (1993) FLC 92-335[10] was decided) to, for example, 1984 (when M was decided). So, too the social context there referred to has evolved in the nearly 20 years since F was decided. [11] Yet, again, despite the undoubtedly evolving, and changed, social context since 1983, including, importantly, the social and economic roles of men and women within marriage, the section remains unchanged in so far as the assessment of contributions is concerned.

24 The decided cases are replete with the expressions just referred to. Those cases are also replete with other epithets or “categorisations” (for example “an inheritance case”; a “windfall case”; a “short marriage case”; a “big money case”). All of those expressions might be seen as a means by which points of distinction and similarity between cases are sought to be drawn with a view to providing a measure of consistency from one case to the next. They might also be seen as examples of the tension identified in M[12] between, on the one hand, the danger of attributing similarities in earlier cases to the facts of a current case and, on the other hand, establishing a measure of consistency in the results of property cases – a tension made manifest by the fact of (and the breadth of) the discretion inherent in s 79.

25 But, none of those expressions (or categorisations) can be found within s 79. Nor can any guidance be found within the section as to how, or to what extent, any case that might meet any such description should be treated by comparison with a case that does not meet any such description.

26 Whilst some assistance may be rendered by the use of expressions such as “special skills” or “special” or “extraordinary” contribution, in my view, the use of such expressions is apt to mislead and to obscure, rather than illuminate, the task at hand. The real danger lies in the promulgation of a notion that, by establishing “special contribution” or “special skills” – whatever the expression, or the indicia comprising any such expression might be said to be – a result of a particular type, or a particular range, should follow. That is an improper fetter on an “extraordinarily wide” discretion. It smacks of a presumption antithetical to what the section requires.

27 However unsatisfactory or uncomfortable an “extraordinarily wide” discretion may feel for a trial judge, it is the exercise of precisely that which the section requires and it is precisely that which confronts a trial court – albeit informed by the mandatory considerations inherent in s 79. O’Ryan J held in D & D [2005] FamCA 1462 at [271] that “...the notion of special contribution has all been a terrible mistake...” and his Honour went on to hold that “... what I have to do is identify and assess the contributions made by each of the parties without any presumption of entitlement.” The very wide discretion inherent in s 79 requires the Court “... to do justice according to the needs of the individual case, whatever its complications might be.”[13] That necessarily involves an acknowledgement that the circumstances of each marriage are different and that it is to those particular circumstances to which the discretion must be applied.

28 Shape can be given to that task, in my view, by looking at the nature, form, characteristics and origin of the property comprising the “property of the parties or either of them”. Reference to the above excerpts from the judgments in M will see distinctions drawn by reference to the form and characteristics of the property to be divided. Those matters can bear upon an analysis of the parties’ respective contributions. (The contributions that each party has made to, for example, a superannuation interest over 29 years might be seen to be different in character to those made by each party to, for example, an inheritance received a year before separation). Further shape can be given to the task by examining the nature and form of the matrimonial partnership; to what Deane J in M referred to (at 640) as “...a practical union of both lives and property...” The nature and form of the particular union can, too, bear upon an analysis of contributions. Did each of the parties contribute physically, emotionally and financially to their union? Did the parties plan and execute decisions together or was their partnership, despite in law being a “marriage”, anything but a manifestation of any such practical unity?

29 Obviously enough, it is then important to identify the nature, form, characteristics and extent of the contributions made by each of the parties by reference to the sub-paragraphs of s 79(4) of the Act – in effect to identify each and all of those contributions of varying types and extent and compare them.

30 Having done so, what remains is the exercise of discretion – to do what is just and equitable – as between these particular parties, not because one or the other has “special skills” or because there is a “matrimonial partnership”, but because the identification and comparison of contributions and the “general counsel of experience” pulls toward a particular result. Or, as Coleman J recently put it: “Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.”

In paras 35-38 his Honour gives his reasons for adopting a global rather than a “two pools” approach.

35. As the High Court held in N v N [1986] HCA 17; (1986) 161 CLR 513 at 523 there is much to be said for adopting, generally, a global approach to the assessment of the parties’ contributions. Yet, as that same case makes clear, a discretion remains.

36. Here, a case can be made that the nature and extent of the parties’ contributions and the justice and equity of their ultimate entitlements are better assessed if a “two pools approach” is adopted; the nature, form and characteristics of the business on the one hand, and the remaining assets and superannuation interests on the other, and the nature and extent of the contributions made by each party to each pool, might, it can be argued, make that approach more appropriate.

37. Ultimately, however, I consider a global approach preferable. This is a long marriage and, as will be seen, the various contributions made by each of the parties over that time see the parties’ wealth vested essentially in two major assets and those two major assets have an interconnection by reason of the construction business being responsible for the construction of the former matrimonial home and materials, labour and funds being directed from one to the other.

38. I consider it artificial to distinguish between different groups of assets or superannuation interests or, for example, between the business on the one hand and the other property and superannuation interests on the other.

There then follows a very helpful discussion of the parties’ relative contributions. At 51 we see:

51 It is submitted on behalf of the husband that “his second job at weekends was building the parties’ next home” and, thereafter, building a new home “on average every two years”. … It is contended in written submissions on behalf of the husband that his efforts in that respect were “all-consuming”, and left “...little time at home to do other than sleep”.

52 The wife had, then, on the husband’s case, a marriage partner whose undoubted hard work left him with virtually no time at home. By the time the parties moved to the X…X, they had three children aged about 10, 8 and 3. On any view of it, the wife was overwhelmingly responsible for the home-making and parenting role during this time. She received, concomitantly, very little, if any, assistance from a marriage partner who “had little time at home to do other than sleep.

56 More important in my view is that the submissions on behalf of the husband ignore, as it seems to me, the fact that the wife was, at all times, an equal shareholder and a director of the corporations forming the business. The husband contends that he was the driving force – both intellectually and otherwise – behind the business in the sense of managing its day-to-day affairs, designing buildings for construction and sale, and placing the business strategically so as to enable it to become the very successful business which it undoubtedly has been and is. I accept that to be the case and his contributions in that respect are plainly very significant.

57 However, the wife’s contributions are, in my view, not limited to those which the husband contends. Capital to which the parties were each entitled formed the foundation for the commencement of the construction and later when it became a business, including one with a corporate structure. The husband and wife have had an equal shareholding in the business since its inception (and still do) and, accordingly, an equal investment in it. It was their joint investment which was, over the business’s life, re-invested within it and which permitted its continued operation in the manner in which it did[19].

There then follows a detailed and helpful process of how his Honour approached the assessment of contributions. From para 76 we see:

76 In summary, then, when regard is had to the origin, nature, form and characteristics of the property and the nature, form and characteristics of this particular union, there are many aspects to the differing contributions – made predominantly in different “spheres” – in which I do not consider it just to draw any distinction between the contributions made by each of the parties.

77 Specifically, I reject the notion that any such distinction should be drawn because this might be described as a “big money case” or because, per se, the husband’s predominant contributions have been made to a very successful and valuable business as distinct from the wife’s predominant contributions which were and are made indirectly and, in particular, contributions made to the welfare of the family. In that respect, I also reject the notion that one “sphere” or “role” should be seen as, of itself, more important, or more inherently “valuable”, than the other.

78 I do so for a number of reasons. First, the terms of s 79 suggest no such thing. Secondly, doing so risks giving insufficient or “token” weight to the “sphere” comprising contributions to the welfare of the family or other indirect contributions and doing so is contrary to authority. Thirdly, where, as here, a lengthy marriage partnership can be seen to be the “practical union” to which Deane J refers in M, there is a symbiosis between contributions made by each party within their role or sphere; one party is rendered more able to make contributions within their role by reason of the contributions made by the other within their role. References above to one party “freeing up” the other party and to the maintenance of stability within the business are examples.

79 Indeed, during his evidence the husband referred to a very good example of that symbiosis within the context of the business. He referred to the apparently continual good-natured debate between the construction arm and the marketing arm of the business as to which of the two was more responsible for the business’s success. As he acknowledged, there can be no resolution to the debate because the comparison is between apples and pears. But, significant to the instant discussion, each contributes to the whole by complementing the other and the whole is, as a result of the efforts of each arm, greater than the sum of its individual parts. The same might be said of a union between two people where the nature and form of their partnership is that of a “practical union of both lives and property”.

80 I reject the notion that justice and equity requires a distinction to be drawn between the contributions of the parties by reason of the husband being possessed of “special skills” or because his contributions can or should be described as “special” (whatever that might mean or be intended to connote).

81 However, I consider that an analysis of the nature, form and characteristics of the contributions of varying types made by each of the parties renders it just and equitable that any assessment of those contributions should favour the husband.

82 I am persuaded that in this lengthy marriage there should be such a disparity by reference in particular to the ingenuity and stewardship which the husband has brought to the business outside of the other contributions made to the business by each of the parties.

In response to a submission at [86] that while earlier decisions are not “binding”, the appearance of a consistency of decisions which are set out in a table, “cannot be ignored”, his Honour says at [88] , “…. it is appropriate, as counsel suggests, to take account of earlier decisions so as to inform generally the parameters of the discretion. However, care must be exercised; orders in any given case are about effecting individual justice by reference to individual circumstances and it is imperative that reference to those decisions should not be used as a fetter on the wide discretion inherent in the section.”

Under the heading “Quantification of Contributions – “The Leap from Words to Figures” his Honour says at [90-93]

90 …. that “... in many of these cases reference only to percentages can be misleading; the reality is to be found in the actual figures...” and also, specifically in respect of the “s 75(2) factors” that: There is, we think, at times a tendency to assess s. 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries ... it is the real impact in money terms which is ultimately the critical issue.[22]

91 I consider that it is the “real worth in money terms” that should inform the assessed difference in contributions between the husband and the wife in this case when the “leap” described by Coleman J in S is performed.

92 It will be plain from what I have said earlier in these reasons that I consider that there is a disparity in the parties contributions and that, axiomatically, the contributions of the parties should not be assessed as equal. …..

93 A disparity of 20 per cent between the contributions of the parties – that is to say an assessment of contributions in the percentage of 60 per cent to the husband and 40 per cent to the wife – sees the husband retaining property valued at between about $19.4m and $23.9m and the wife between $12.9m and $15.9m. That is, there would be a disparity of between about $6.5m and $8m by reference to the range in valuations. I consider that assessment to be an appropriate quantitative reflection of the differences in contributions between the parties.

Age, superannuation and sec 75 adjustments

16 July 2012

If either party is approaching retirement, make sure the evidence explores that issue fully. It is common for a party on a lower income to receive an adjustment under sec 75(2).

In at least one case the higher income earner was already over 63 years old. The trial judicial officer found that the husband had a “significantly higher income than the wife”. Accordingly he made orders that the wife receive 59% of tangible assets and superannuation. In fairness to the judicial officer, there was no evidence of the age at which the husband was intending to retire, although the fact that a 63-year old had a limited working life left was obvious and did not need articulation.

The irony is that upon the making of that order, the wife was immediately entitled to take her superannuation share as a pension under a Commonwealth scheme. If the husband was to retire at 65 (ie in less than 2 years), his income would plummet to whatever pension would apply to his 41% share of his super. One can readily see a situation where the wife could receive a higher income than the husband for rest of their respective lives. For a number of reasons following a successful appeal these parties are now awaiting a retrial.

In another case, a wife was awarded a spouse maintenance order for a fixed number of years notwithstanding that she was already close to 55 years of age. As the wife was claiming she had no income earning capacity, that meant that upon attaining 55, she could claim her 57.5% split of superannuation as a pension. The appeal was allowed, and the matter was settled upon rehearing on the same split ratio, but without a spouse maintenance component.

In yet another case, there was an attempt to point to the husband’s much higher income, but at least the evidence that was put before the Court was that the husband had given notice of his intention to retire in 2013. For a number of reasons the matter settled, but there was a myopic attempt to portray the husband as receiving a very large income without any regard to his age.

The lesson to be drawn from these situations is that it is important to make sure there is clear evidence of intentions of when a person is due to retire. In many cases, the sec 75 adjustment can proceed on a totally inappropriate understanding. In other case it may be vital to explore the options open to the other party. In all cases involving superannuation it is vital to have not just a valuation of the superannuation benefits, but also a firm understand the rules of the relevant fund.

Discrepancies in Values? Stay away from any “averaging”

10 July 2012

Practitioners are urged to be cautious about any attempt to follow the first instance decision in F and N [2011] FMCAfam 975. The appeal succeeded in June 2012 after the Full Court invited the Respondent's Counsel to “seek instructions”. The appeal was then allowed by consent with the usual costs certificates being granted. In addition a re-trial was ordered.

What this does mean is that there was no need for the Full Court to make findings in relation to “other hurdles” the Respondent’s Counsel would have had to overcome.

The Federal Magistrate was faced with clearly unreliable material as to what was the value of some properties in an overseas country, with the position being made even more fraught by the large discrepancies in the figures put forward by each of the purported “valuers”.

His Honour agreed with a prediction on behalf of the husband that “The Court will probably find that there have not been any or any reliable valuations in respect of some of the property.” saying “Few truer words were written or stated in relation to these proceedings.”

His Honour had also been urged to make an order for the sale of all properties which would at least give the Court a realistic market value of the overseas properties, and both parties would have to wait for such sales to take place, and both would have to take the consequences if there are any difficulties in transmitting funds to Australia.

Instead his Honour chose to take the averages of the figures to arrive at a “Court value”.

That is precisely what the High Court had criticized in the case of The Commonwealth v Milledge, [1953] HCA 6; (1953) 90 CLR 157 where there were 6 valuers, each of whom was properly qualified as ‘experts”, and each of who presented reasoned valuations.

Dixon CJ and Kitto J said at [6] (in the Austlii version) “… it must be rarely, if ever, that a process of averaging sale prices can be anything but fallacious.” At [7] their Honours say, “We think that a valuation made on this basis ought not to be sustained. Even if all the witnesses had used the same material as one another, and had approached the problem in the same way, the average of the values they respectively reached would most likely be a figure which each of them would consider to be wrong. But what is worse is that it would be a figure not arrived at by the application by the court of the established principles of valuation.”

With respect to the learned Federal Magistrate, his interpretation of a passage in the Full Court decision in P and P (2002) FLC ¶93-104; [2002] FamCA 350 at para [43] – [49] & [57], there is nothing in the Full Court decision that permits averaging.

Not only is there the clear criticism of averaging from the High Court, but there is a range of Full Court cases like L and L (1987) FLC ¶91-814, D and D (1987) FLC ¶91-846; (1987) 11 FamLR 901 and others. In B v B (1989) FLC ¶92-049: (1989) 13 FamLR 415 (1989) 97 FLR 211 the Full Court made it clear that there may be cases where, after applying the proper principles to determining value of a property, a Court may well arrive at a figure that is between the values contended for by the parties. But that is after an application of the proper principles of valuation.

Practitioners and parties are cautioned not to put up figures as “values” unless they are indeed from properly qualified experts. The position in Australia in the light of sec 79(1) of the Evidence Act is now made very clear following the High Court judgments in Dasreef Pty Ltd v Howchar [2011] HCA 21. You must establish that the person being put forward as an expert, has “specialised knowledge based on the person's training, study or experience" and that the person's opinion is "wholly or substantially based on that knowledge.”

At [42] the plurality of the High Court state –

"A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight."

For a proper enlightenment of the issues discussed by their Honours, and in order to understand what must be contained in the evidence of experts, readers are referred to this High Court decision.

Binding Financial Agreements

While the Federal parliament intended to encourage settlements between parties to failed marriages or de facto relationships, it created a legislative pathway lined with improvised litigation devices that can blow up at any time in the future.

Such agreements may be made under the Family Law Act (FLA) pursuant to sections 90B (before marriage), 90C (during the currency of a marriage) and 90D (after divorce). They were a substitution for what parties were able to achieve under the repealed sec 87. They are not dependent on any approval by a Court. They require legal practitioners to project their drafting inventiveness in order to cover, and to give advice upon, events that may or may not happen well into the future. The most difficult scenarios face practitioners preparing financial agreements intended to be for the purposes of sec 90B and even 90C if drafted in the earlier part of a relationship.

A very recent decision by Justice Le Poer Trench in P v P examines the legislative framework, the remedies open to parties where there are attempts to invoke equitable remedies for mistake and issues of duress and unconscionable conduct by a party. The impact of so-called incorrect legal advice might not vitiate the financial agreement, but if negligent, it may constitute a basis for action against the legal practitioner. His Honour sets out the multitude of issues that must be covered by effective financial agreements, as well as the range of matters on which the independent legal advice must be given to minimize the risk of future litigation.

The focus of the case was the operation of Part VIIIA of the FLA. His Honour’s reasons for judgment constitute a welcome and compendious extract of decisions in the High Court, the Full Court and respected decisions of numerous single judges of the Family Court and some State Supreme Courts. I strongly recommend anyone venturing into the world of drafting so-called “BFAs” and giving parties the necessary advice for the purposes of section 90G(1), to study the 97 pages of this judgment very closely. There were a large number of arguments advanced, but while his Honour could have taken a short cut and determined the case on just one of the core issues, he generously lent his assistance to the profession and other judicial officers in addressing each one of those. The case involved wrong advice by a legal practitioner, allegations of duress, unconscionable conduct, impracticality and unilateral mistake. The solicitor’s advice might have found its genesis in the old cases of C v P , D (No 3) and W v W , rather than in Part VIIIA.

The core concepts which must be understood, are –

1 Was there a “financial agreement” between the parties as defined in section 4(1) of the FLA for the purposes sections 90B, 90C or 90D?

2 “financial matters” are also defined.

3 If the financial agreement and the parties’ and their legal advisers’ conduct relating to such “financial agreement” fulfill the requirements of section 90G(1) of the FLA, then, and only then, do such financial agreements operate as a bar to any later proceedings for property or maintenance under Part VIII. In other words, subject to exceptional events and declarations under 90G(1A) strict compliance with 90G(1) ousts the jurisdiction of any Court of competent jurisdiction to make any later orders for maintenance or property division under Part VII. That is the combined effect of sec 90G(1) and of sec 71A. Section 90G is otherwise irrelevant to the question of whether contractual rights under a financial agreement under sections 90B, 90C or 90D are valid or enforceable.

4 The ouster of jurisdiction is found in sec 71A - 71A(1) This Part (ie Part VIII ) does not apply to: (a) financial matters to which a financial agreement that is binding on the parties to the agreement applies; or (b) financial resources to which a financial agreement that is binding on the parties to the agreement applies. 71A(2) Subsection (1) does not apply in relation to proceedings of a kind referred to in paragraph (caa) (ie matters involving a Bankruptcy trustee of a bankrupt party – my note) or (cb) (also involving a Bankruptcy trustee) of the definition of matrimonial cause in subsection 4(1).

5 It is quite possible to have an enforceable financial agreement just like any other valid contract, but one which fails to oust the jurisdiction of the Court to make orders under Part VII. The powers of the Court to set aside or to enforce financial agreements is found in sections 90K and 90KA ...

6 It is the validity of a financial agreement combined with the compliance with sec 90G(1) that gives that Agreement the effect of ousting (for the purposes of the FLA) the jurisdiction of the Court to make subsequent property and maintenance orders.

7 Nowhere does the legislation refer to a “binding financial agreement”.

8 Subject to sec 90G(1A), failure to fulfill the requirements of section 90G(1) does not automatically mean that a party is entitled to have the agreement set aside.

See the more recent decision by Justice Murphy in H v H [2012] FamCA 367, and his Honour's discussion of some essential concepts that must be understood in this area of law.