ADAME & ADAME

[2014] FCCA 42

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAME & ADAME [2014] FCCA 42

Catchwords:
FAMILY LAW – Application to set aside binding financial agreement – whether agreement the result of duress or unconscionability – whether agreement fails to comply with s.90G of the Family Law Act 1975.

Legislation:

Family Law Act 1975, ss.90G, 90K, 90KA, 90C, 90G(1)(b), 90K(1)(a), 90G(1)(c), 90G(1A)(c)

Crescendo Management Pty Ltd & Westpac Banking Corporation (1988) 19 NSWLR 40
Hogan & Hogan [2010] FMCAfam 1255
Saintclaire & Saintclaire [2013] FamCA 491

Applicant: MS ADAME

Respondent: MR ADAME

File Number: ADC 869 of 2007

Judgment of: Judge Jarrett

Hearing date: 11 July 2013

Date of Last Submission: 11 July 2013

Delivered at: Brisbane

Delivered on: 16 January 2014

REPRESENTATION

Counsel for the Applicant: Mr McGregor

Solicitors for the Applicant: Charles Cooper Lawyers

Counsel for the Respondent: Mr Galloway

Solicitors for the Respondent: Wiltshire Lawyers

ORDERS

1. The financial agreement made between the parties on 19 January, 2011 be set aside.

2. The respondent’s application for orders set out in paragraphs 1 and 2 of his response filed on 8 April, 2013 be dismissed.

3. All outstanding applications be listed to 20 February 2014 at 9.30am for directions in the Federal made in the Federal circuit court sitting at Brisbane.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

ADC 869 of 2007

MS ADAME

Applicant

And

MR ADAME

Respondent

REASONS FOR JUDGMENT

1. On 19 January, 2011 the applicant and the respondent entered into a binding financial agreement for the purposes of s.90C of the Family Law Act1975. 

2. By proceedings commenced on 14 February, 2013 Mrs Adame seeks:

   a)orders that the binding financial agreement be declared non-binding and be set aside;

   b)a declaration pursuant to s.79A(1A) of the Act that orders of the Family Court of Australia dated 1 March, 2007 be set aside;

   c)declarations that the respondent holds certain real property as trustee for both parties;

   d)an order pursuant to s.79 of the Act for property adjustment between the parties; and

   e)certain parenting orders.

3. Mr Adame opposes the orders sought by Mrs Adame and seeks that her application be dismissed.

4. On 9 April, 2013 I ordered that the application for orders to set aside the binding financial agreement be adjourned to 11 July, 2013 for final hearing.  The other relief sought by the applicant has been adjourned to a date to be fixed pending a determination of that application.

The Issues

1. Mrs Adame argues that the binding financial agreement should be set aside because:

   a)she entered into it under duress;

   b)Mr Adame did not properly disclose all of his assets to her when the agreement was made;

   c)some substantive requirements of the Act were not met when the binding financial agreement was executed;

   d)some formal requirements of the Act were not met when the binding financial agreement was executed; and

   e)in any event there has been…