Balson & Sandberg - [2023] FedCFamC2F 390

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Balson & Sandberg [2023] FedCFamC2F 390

File number(s): MLC 11313 of 2019

Judgment of: JUDGE HARLAND

Date of judgment: 5 April 2023

Catchwords: FAMILY LAW whether or not financial agreement is binding – requirements for signing a financial agreement – material change of circumstances – uncertainty – duress

Legislation:
Family Law Act 1975 (Cth) ss 44(3), 90G, 90K(1)(d), 90SF, 90UC, 90UC(1)(a), 90UC(2), 90UF(4), s90UJ, s90UJ(1A), 90UM(1), 90UM(1)(e), 90UM(1)(g), 90UM(1)(h)

Law of Property (Miscellaneous Provisions) Act 1989 (UK)

Property Law Act 1958 (Vic), ss 73, 73A

Wills Act 1915 (Vic)

Cases cited:
Caton v. Caton (1867) L.R. 2 H.L. 127

Chaffin & Chaffin [2019] FamCA 260

Daily & Daily [2020] FamCAFC 304

Fewster & Drake [2016] FamCAFC 214

Firstpost Homes Ltd v Johnson & Ors [1995] WLR 1567

Frederick & Frederick [2019] FamCAFC 87

Guild v Stasiuk [2020] FamCA 348

Hoult & Hoult [2013] 50 Fam LR 260

In the Marriage of Whitford (1979) FLC 90-612

Leung & Fan [2020] FCCA 764

Milavic & Banks (No. 2) [2016] FamCA 884

Re McCarthy, deceased [1922] VLR 216

Thorne v Kennedy [2017] HCA 49

Division: Division 2 Family Law

Number of paragraphs: 115

Date of last submission/s: 21 February 2023

Date of hearing: 20 and 21 February 2023

Place: Melbourne

Counsel for the Applicant: Mr DeVries

Solicitor for the Applicant: Kaj Sharma Legal

Counsel for the Respondent: Mr Puyol

Solicitor for the Respondent: Marcou and Associates Pty Ltd
ORDERS

MLC 11313 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BALSON

Applicant

AND:
MR SANDBERG

Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

5 April 2023

THE COURT ORDERS THAT:
1.The financial agreement dated 2 October 2017 is binding on the parties.
2.The financial agreement dated 2 October 2017 be set aside under section 90UM(1)(g) of the Family Law Act 1975 (Cth)
3.Within 14 days, the Applicant file an Amended Initiating Application setting out with precision the final orders sought.
4.Within 14 days thereafter, the Respondent file a Response to Initiating Application setting out with precision the final orders sought.
5.The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Registrar at 9.00am on 31 May 2023.
6.The parties and any lawyers on the record shall follow any directions from the Registrar convening the conference in relation to attendance in person, by Microsoft Teams or by telephone.
7.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the Applicant must pay the Conciliation Conference fee within no less than 14 days prior to the Conference.
8.Not later than 4.00 pm on 14 days prior to the conference date, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b)ensure that any private expert report that is relevant to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balson & Sandberg

Details

AGLC: Balson & Sandberg [2023] FedCFamC2F 390
Case: [2023] FedCFamC2F 390
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Ms Balson and Mr Sandberg regarding the enforceability and validity of a financial agreement they entered into on 2 October 2017. The key issues before the Court were whether the agreement was binding, and if so, whether it could be set aside under the Family Law Act 1975 (Cth). The Court found that the agreement was binding, but due to a material change of circumstances since the agreement was made, the agreement should be set aside. The Court's reasoning was based on the evidence presented by both parties, which revealed inconsistencies and gaps in their testimonies. The Court concluded that Ms Balson had established a material change in circumstances, as she had given birth to a child since entering into the agreement, and that she would suffer hardship if the agreement was enforced. The Court ordered the agreement to be set aside, allowing Ms Balson to pursue property adjustment orders. The matter will proceed to a Conciliation Conference before a Registrar, with a trial to follow if the matter does not resolve.

Orders