Ainsley and Lake

[2016] FCCA 2132

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
Blackmore & Webber [2009] FMCAfam 154
Green & Kuriatek (1982) FLC 91-259

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

1. 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

1. 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

2. 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.

3. 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

1. 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…