FAMILY COURT OF AUSTRALIA

GIBBS & GIBBS	[2015] FamCA 630	

FAMILY LAW – FINANCIAL AGREEMENT – Set aside	

	

APPLICANT:	Mr Gibbs	

RESPONDENT:	Ms Gibbs	

FILE NUMBER:	BRC	10882		of	2013	

DATE DELIVERED:	23 July 2015	

PLACE DELIVERED:	Brisbane	

PLACE HEARD:	Brisbane 	

JUDGMENT OF:	Hogan J	

HEARING DATE:	23 July 2015	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Lloyd, Senior Counsel and Ms Giacomo of Counsel	

SOLICITOR FOR THE APPLICANT:	Manning Lawyers	

COUNSEL FOR THE RESPONDENT:	Mr Looney, Queen’s Counsel and Mr Theile of Counsel 	

SOLICiTOR FOR THE RESPONDENT:	Schultz Toomey O’Brien Lawyers 	

Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
(1)	The Financial Agreement between the parties dated 14 March 2005 and signed by them is set aside. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gibbs & Gibbs 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 BRISBANE	

FILE NUMBER: BRC 10882 of 2013

Mr Gibbs	
Applicant

And

Ms Gibbs	
Respondent

EX TEMPORE
REASONS FOR JUDGMENT
1.	Ms Gibbs seeks that a Financial Agreement dated 14 March 2005 and signed by the parties be set aside.  
2.	The Fourth Further Amended Response document filed on her behalf contains full particularisation of many bases asserted to provide a basis for such a conclusion: included within which is that the Agreement is void, voidable or unenforceable because of an uncertainty in its terms.
3.	The position until relatively recently by the Respondent husband was that the wife’s Application for setting aside be dismissed.  However, by Case Outline document filed yesterday, the husband outlined his position that he would not oppose an order being made on the basis that the Agreement be set aside on the basis that it is void, voidable or unenforceable because it is uncertain in its terms.
4.	As is made clear by the provisions of s 90K of the Family Law Act 1975 a Court make an order setting aside a financial agreement if and only if the Court is satisfied one of the matters outlined within that section.  Included within those, at subparagraph 1(b), is that the agreement is void, voidable or unenforceable.  Thus it is clear from the terms of s 90K that the Agreement may be set aside if, and only if, the Court is satisfied of the relevant prerequisite. 
5.	Having regard to the terms of the Financial Agreement, I am satisfied that it is voidable or unenforceable because of uncertainty in its terms.  One has, in my view, only to have regard to the potential difficulties interrupting some of its terms - in circumstances where there is an absence of clear definition as to what is meant by them. 
6.	Additionally, it seems to me, that there is, or may be, difficulty in an interpretation of Clauses 4.3 and 4.4 of the Agreement when regard is had to the terms of them.  It is not, it seems to me, by way of example, immediately apparent in terms of a clear expression of the intention of the parties as to what, in fact, might have been their intention and how, in fact, the terms of Clause 4.4, (if applicable), should be carried into effect.
7.	Other examples of difficulties identified from a perusal of the terms of the agreement were discussed earlier during discourse with Counsel.  
8.	I am not persuaded that the uncertainty of terms as expressed in the Agreement touches upon only aspects or claims which could be severed so as to preserve the existence of the Agreement.  
9.	I think, instead, that essential terms (for example:  matters such as “matrimonial property”; what happens to property acquired after marriage but before dissolution - to use only two examples) of the Agreement are vague.  
10.	As I have already expressed in this short form, what, also, is meant by the terms of Clause 4.4 and the manner in which it is said to touch upon or in some way affect the operation of the terms of Clause of 4.3, given the reference and the drafting of each of those clauses?
11.	I am satisfied that those clauses to which I have just referred are essential terms which are uncertain and that, in assessing them objectively, the language is so imprecise and incapable of definite or precise meaning that a Court is unable to attribute to the parties any particular contractual intention in relation to them.
12.	For those short reasons, then, I am satisfied that the Agreement between the parties dated 14 March 2005 and signed by them should be set aside on the basis that I am satisfied that it is voidable or unenforceable.  
13.	Consequently, I make an order in these terms:  the Financial Agreement between the parties dated 14 March 2005 and signed by them is set aside. 
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 July 2015.

Associate:  	

Date:  			23 July 2015