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BERKLEY and STANFIELD

BERKLEY and STANFIELD

Case [2018] FCWA 119 5 July 2018

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BERKLEY and STANFIELD [2018] FCWA 119
CORAM: O'BRIEN J
HEARD: 24 & 25 JANUARY 2017
FINAL WRITTEN SUBMISSIONS 2 MARCH 2018
DELIVERED : 5 JULY 2018
FILE NO/S: PTW 5618 of 2015
BETWEEN: MS BERKLEY
Applicant
AND
MR STANFIELD
Respondent

Catchwords:

FAMILY LAW – BINDING FINANCIAL AGREEMENT – Where the parties signed a financial agreement prior to their marriage – Where husband seeks to enforce the agreement – Where wife seeks orders setting aside the agreement on multiple grounds – Where the home the subject of the agreement was sold prior to separation – Orders made setting aside the binding financial agreement

Legislation:

Fair Work Act 2009 (Cth)
Family Law Act 1975 (Cth) s 90

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr M Berry SC
Respondent	:	Mr M Rynne

Solicitors:

Applicant	:	Douglas Cheveralls
Respondent	:	Carr & Co.

Case(s) referred to in decision(s):

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977)
180 CLR 266
Cawthorn v Cawthorn (1998) FLC 92-805
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982)
149 CLR 337
Commonwealth Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd [1945] AC 221
Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696
Fazio v Fazio [2012] WASCA 72
In the Marriage of La Rocca (1991) FLC 92-222
Johnson v Buttress (1936) 56 CLR 113
Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392
Kennedy & Thorne (2016) FLC 93-737
Louth v Diprose (1992) 175 CLR 621
Paal Wilson & Co A/S Partenreederei Hannah Blumenthal [1983] 1 AC 854
Sanger & Sanger (2011) FLC 93-484
Thorne v Kennedy (2017) FLC 93-807
Weldon and Asher (2014) FLC 93-579
Winefield v Clarke [2008] NSWSC 882

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Stanfield] (“the husband”) and [Ms Berkley] (“the wife”) were married [in] 2001, having lived together since 1994. They separated in June 2015.
2On 12 April 2001, prior to their marriage, the parties executed a financial agreement (“the BFA”) pursuant to s 90B of the Family Law Act 1975 (Cth) (“the Act”). It is common ground that the BFA complied with the requirements of the Act as they stood at the relevant time and is, accordingly, binding.
3Section 90K of the Act provides that a court may make an order setting aside a financial agreement if, and only if, the Court is satisfied on one or more of a number of grounds.
4While the list of grounds is exclusive, the establishment to the satisfaction of the Court of one or more of the grounds does not mean that the BFA must be set aside; rather, it enlivens the discretion to do so.
5The wife seeks to set aside the BFA on the following bases:
1.The husband engaged in conduct that was,…

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 BERKLEY and STANFIELD

Details

AGLC: BERKLEY and STANFIELD [2018] FCWA 119
Case: [2018] FCWA 119
Decision Date: 5 JULY 2018

CaseChat Overview and Summary

The parties in this matter were Berkley and Stanfield. They entered into a binding financial agreement prior to their marriage, which included provisions regarding the division of property and spousal maintenance. After their separation, the wife sought to set aside the agreement on the basis that it was not fairly and reasonably negotiated, it was unconscionable, and it was not in the best interests of the parties to enforce it. The husband sought to enforce the agreement, arguing that it was valid and enforceable. The case was heard in the Family Court of Australia.

The central legal issues before the court were whether the binding financial agreement was fairly and reasonably negotiated, whether it was unconscionable, and whether it was in the best interests of the parties to enforce it. The court considered whether there was any evidence of duress, inequality of bargaining power, or lack of advice that would render the agreement unconscionable. The court also considered the evidence regarding the fairness and reasonableness of the agreement at the time it was entered into and whether the parties had intended the agreement to have legal effect.

The court found that the agreement was not fairly and reasonably negotiated and was unconscionable. The wife had not received independent legal advice prior to signing the agreement, and there was evidence of inequality of bargaining power between the parties. The court found that the wife had not fully understood the terms of the agreement and that it was not in the best interests of the parties to enforce it. The court set aside the agreement and made orders for the division of the parties' property and spousal maintenance.

The court made orders setting aside the binding financial agreement, dividing the parties' property, and ordering the husband to pay spousal maintenance to the wife. The court found that the wife was entitled to a greater share of the property than provided for in the agreement, and that spousal maintenance was necessary to ensure that the wife was not left in a worse financial position than if the agreement had been enforced. The court ordered the husband to pay the wife spousal maintenance of $1,500 per fortnight until she remarries or reaches the age of 60, subject to variation.

Orders