FEDERAL CIRCUIT COURT OF AUSTRALIA
Baudin & Lakatos [2021] FCCA 1914
File number(s): DGC 3631 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 26 August 2021 Catchwords: FAMILY LAW – Property dispute after 19 years marriage – wife signing purported binding financial agreement
in 2005 – whether agreement vitiated by duress, undue inference and/or unconscionable conduct – wife not speaking or reading English – wife wholly incapable
of understanding the terms of the binding financial agreement and/or its effect – clearly appropriate to set agreement aside – husband owning matrimonial home unencumbered before the start of the marriage – just and equitable division being 80/20 in favour of the husband.Legislation: Family Law Act 1975 (Cth) s 91K Cases cited: Logan v Logan (2013) FLC 93-555
Thorne v Kennedy [2017] HCA 49
Corelli & Beroni [2019] FamCA 911
Stanford v Stanford [2021] HCA 52
In the marriage of Re Mallet (1984) 156 CLR 605
Number of paragraphs: 105 Date of last submission/s: 14 July 2021 Date of hearing: 14 July 2021 Place: Dandenong Counsel for the Applicant: Mr P Indivino Solicitor for the Applicant: Ressan Lawyers Counsel for the Respondent: Mr Glezakos Solicitor for the Respondent: Rigoli Lawyers ORDERS
DGC 3631 of 2020 BETWEEN: MS BAUDIN
Applicant
AND: MR LAKATOS
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.The matter be adjourned to this Court for mention before Judge Burchardt on 30 August 2021 at 9.30 am
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstance, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Baudin & Lakatos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is an unusual property dispute. The first issue raised is whether or not an agreement signed on 22 December 2005, and which purported to be a binding financial agreement entered into pursuant to section 90B of the Family Law Amendment Act 2000, is binding or not. If it is not binding, then there is further argument as to what percentage of the property pool, if any, the wife should receive, the husband’s position being that she should receive none.
For the reasons that follow, I have no doubt that the agreement made on 22 December 2005 should be set aside pursuant to section 90K of the Family Law Act 1975 (“the Act”) on the basis either that it is void, voidable or unenforceable (section 90K(1)(b)) or because the conduct of the husband was, in all the circumstances, unconscionable (section 90K(1)(e)). The primary reason for this conclusion can be stated shortly. The wife had no idea whatsoever what it was she was signing. The purport of the document was not explained to her. The document is in English, which she does not read. Her signature is not marked…
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- AGLC
- Baudin & Lakatos [2021] FCCA 1914
- Case
- [2021] FCCA 1914
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CaseChat Overview and Summary
The primary legal issue before the court was whether the agreement between the parties should be set aside pursuant to section 91K of the Family Law Act 1975 (Cth). This required the court to determine if the wife had a sufficient understanding of the agreement when she signed it, particularly in light of allegations of duress and unconscionability. A secondary issue was the appropriate division of the former matrimonial home, considering the contributions of each party to the relationship and the asset.
Burchardt J reasoned that the wife lacked a true understanding of the agreement she signed, finding that it had not been properly explained to her. This lack of understanding, coupled with the circumstances surrounding its execution, led the court to set aside the agreement. The court then addressed the property adjustment, noting that the matrimonial home was entirely owned by the husband prior to the relationship. Despite the wife's minimal financial contribution to the home, the court recognised her contributions to household duties and the care of the parties' son. Applying the principles from *In the marriage of Re Mallet*, the court assessed the contributions as 80 per cent to the husband and 20 per cent to the wife.
The court ordered that the agreement be set aside pursuant to section 91K of the Family Law Act 1975 (Cth). The property adjustment was ordered on the basis of an 80/20 split in favour of the husband, reflecting the parties' respective contributions.
Orders
Orders of the court
DGC 3631 of 2020
BETWEEN:
MS BAUDIN
Applicant
AND:
MR LAKATOS
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1. The matter be adjourned to this Court for mention before Judge Burchardt on 30 August 2021 at 9.30 am
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstance, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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