Be careful what you apply for
Delrio & Jindra  FCCA 1186 (12 June 2019)
This is a Judgment of Judge Altobelli.
Neither party have felt much satisfaction in the outcome.
The husband and wife were married and then separated. There was a document that purported to be a pre-nup in place.
His Honour discussed relevant terms of the agreement.
The husband sought:
- a declaration that the agreement was not binding;
- further, or in the alternate, an order that the agreement be set aside or declared void under the provisions of sections 90K(1)(e) and 90KA.
He also sought money in the form of a cash payment from his wife, the possession of the dog and his costs.
The wife sought that the husband’s application be dismissed and that a declaration that, pursuant to section 90G(1B) be binding.
The first two of the husband’s orders were dismissed. This meant the technical attacks on the agreement were not successful. The balance of his application, that he be paid $1.5M within 28 days of the date of the orders was adjourned.
The wife’s orders were also both dismissed.
His Honour’s comment in relation to the wife’s orders is of most interest.
“The statutory scheme is complex. The declaration that is available under section 90G(1B) seems only to be available for the purposes of paragraph (1A)(d). That sub-section states that a financial agreement is binding on the parties to the agreement if the Court makes an order under sub-section (1B) declaring that the agreement is binding on the parties to the agreement. However, on the face of it, sub-section (1A)(d) is merely part of sub-section (1A), and thus all of the requirements of (1A) need to be met before the declaration can be made. On the facts of this case, paragraphs (b) and (c) of 90G(1A) are not established. Thus, 90G(1A) does not apply, and the declaration is not available.
The Court accepts, however, that the orders the Wife seeks are to be regarded as an enforcement application for the purpose of section 90G(1B).”
His Honour determined that section 90G(1B) is not an independent source of power to make a declaration.
His Honour found:
“Section 90G(1A) seems directed to the situation where one of the formal requirements of section 90G(1) have not been met, but the Court is satisfied it would be unjust and inequitable if the agreement was not binding.”
This is of interest to me as a practitioner and particularly in a context where the wife is described as being represented by family law experts.