FEDERAL CIRCUIT COURT OF AUSTRALIA
| AINSLEY & LAKE | [2016] FCCA 2132 |
| Catchwords: FAMILY LAW – Property – Binding Financial Agreement – agreement set aside due to wife’s failure to disclose the value of her superannuation at the time the Deed was signed. |
| Legislation: Family Law Act 1975 (Cth), ss.79, 90K |
| Cases cited: Stoddard & Stoddard [2007] FMCAfam 735 |
| Applicant: | MS AINSLEY |
| Respondent: | MR LAKE |
| File Number: | WOC 790 of 2014 |
| Judgment of: | Judge Henderson |
| Hearing date: | 15 July 2016 |
| Date of Last Submission: | 15 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rosic |
| Solicitors for the Applicant: | Kells The Lawyers |
| Counsel for the Respondent: | Ms Humphreys |
| Solicitors for the Respondent: | Rebecca Bailey & Associates |
ORDERS
The Binding Financial Agreement dated 1 March 2012 be set aside.
IT IS NOTED that publication of this judgment under the pseudonym Ainsley & Lake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 790 of 2014
| MS AINSLEY |
Applicant
And
| MR LAKE |
Respondent
REASONS FOR JUDGMENT
The matter of Ainsley & Lake concerned the enforcement by the wife of a binding financial agreement the parties entered into on 1 March 2012. The husband seeks the agreement be set aside pursuant to section 90K of the Family Law Act[1]. Mr Rosic of counsel represented the wife and Ms Humphreys of counsel the husband.
[1] Family Law Act 1975 (Cth), s70K
The evidence led for the parties was as follows:
a)For the wife;
i)The Wife’s affidavit filed 2 February 2016;
ii)Her financial statement filed 26 August 2014;
iii)Case outline filed for the hearing; and
iv)The minute of order she sought which is effectively that the agreement be enforced;
b)For the husband;
i)The husband’s amended response filed 28 January 2016;
ii)His affidavit of 2 February; and
iii)An additional affidavit of 7 July 2016.
c)Both parties were cross-examined at the final hearing.
A short chronology of the matter is as follows;
a)The husband was born in 1972, the wife in 1976.
b)They commenced living together in 2000 and were married in (omitted) 2008.
c)They separated in October 2010.
d)They entered into a binding financial agreement on 1 March 2012.
e)The former matrimonial home was sold in March 2014.
f)They have two young sons who live with their mother and spend time with their father.
Section 90K of the Family Law Act
Circumstances in which court may set aside a financial agreement or termination agreement
(1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
a) the agreement was obtained by fraud (including non-disclosure of a material matter); or
(aa) a party to the agreement entered into the agreement:
i)for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
ii)with reckless…
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- Ainsley and Lake [2016] FCCA 2132
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- [2016] FCCA 2132
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CaseChat Overview and Summary
The primary legal issue before the Court was whether the BFA should be set aside pursuant to s 90K of the *Family Law Act 1975* (Cth). This required the Court to consider whether there were grounds to invalidate the agreement, such as it being obtained by fraud, duress, or undue influence, or if it was otherwise void or unenforceable.
Judge Henderson found that the BFA was not binding and therefore ordered that it be set aside. The reasoning for this decision, though not detailed in the provided text, would have involved an assessment of the circumstances surrounding the agreement's formation and its compliance with the requirements of the *Family Law Act*.
Consequently, the Court ordered that the Binding Financial Agreement dated 1 March 2012 be set aside.
Orders
Orders of the court
1.
The Binding Financial Agreement dated 1 March 2012 be set aside.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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