FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BLACKMORE & WEBBER | [2009] FMCAfam 154 |
| FAMILY LAW – Application to set aside Binding Financial Agreement – whether Agreement arises from duress or unconscionability – whether Agreement was obtained through fraud and in particular non-disclosure of a material fact – whether Agreement fails to comply with section 90G of the Family Law Act 1975. Application to dismiss the wife’s amended application for variation of children’s orders pursuant to the rule in Rice and Asplund. |
| Family Law Act 1975, ss.4(1), 90G, 90K, 90KA, 90MD |
| Williams v Bayley [1866] LR 1 HL 200 Blomley v Ryan (1956) 99 CLR 362 Rice and Asplund (1978) 6 Fam LR 570 In the Marriage of McEnearney (1980) FLC 90-866 Commonwealth Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Crescendo Management v Westpac (1988) 19 NSW LR 40 Suiker & Suiker [1993] FLC 92-436 Bridgewater v Leahy (1998) 158 ALR 66 Pelerman & Pelerman (2000) FLC 93-037 Ribchenkov v Suncorp-Metway Ltd and Others (2000) 175 ALR 650 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 SH & DH (No.1) [2003] FMCAfam 330 C & C (2005) FLC 93-220 J and J [2006] FamCA 442 T and T (Pension Splitting) [2006] FamCA 207 Stoddard v Stoddard [2007] FMCAfam 735 B & B (2008) 216 FLR 422 SPS & PLS (2008) FLC 93-363 Tsarouhi & Tsarouhi [2009] FMCAfam 126 |
| Applicant: | MS BLACKMORE |
| Respondent: | MR WEBBER |
| File Number: | MLC 13387 of 2007 |
| Judgment of: | Bender FM |
| Hearing dates: | 25, 26 & 27 February 2009 |
| Date of Last Submission: | 27 February 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 6 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Holding Redlich |
ORDERS
The agreement between the parties dated 11 November 2004 be set aside.
The parties attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Melbourne Registry on 18 May 2009 at 2.15 pm.
Unless by 27 April 2009 the parties having confirmed in writing an agreement as to the market value of the properties situate at Property F and Property R, then each party forthwith do all acts and things necessary to obtain a sworn valuation from an appropriately qualified person, such valuation to be filed with the court not later than 11 May 2009.
The parties ensure that no later than fourteen days prior to the date fixed for the conciliation conference, each party send to the other, and the nominated Registrar:
(a)valuations of any superannuation interests;
(b)a copy of the actual terms of orders required to give effect to their settlement proposal; and
(c)written confirmation by each party or his or her solicitor that:
(i) all relevant documents have been exchanged between the parties; and
(ii) the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
The applicant wife file and…
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- AGLC
- Blackmore & Webber [2009] FMCAfam 154
- Case
- [2009] FMCAfam 154
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on the necessity of setting aside the initial agreement between the parties and directing them to attend a conciliation conference. This step was deemed necessary to facilitate a mediated resolution and to ensure that both parties were fully prepared with accurate valuations and necessary documentation. The court emphasised the importance of procedural fairness, particularly in relation to superannuation interests, and mandated the submission of updated financial statements and affidavits prior to the final hearing. Furthermore, the court provided specific instructions regarding the content and timing of the documents to be exchanged, aiming to streamline the final hearing process.
The outcome of the decision was to set aside the initial agreement and to mandate a series of procedural steps to ensure that both parties were fully prepared for the final hearing. The court ordered the parties to attend a conciliation conference, submit updated financial statements, and ensure that all relevant documents and valuations were exchanged in a timely manner. The final hearing was scheduled for a specific date, with clear instructions on the preparation and submission of additional affidavits and outlines of case documents. Additionally, the court dismissed the wife's amended application filed on 15 December 2008.
Orders
Orders of the court
1.
The agreement between the parties dated 11 November 2004 be set aside.
2.
The parties attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Melbourne Registry on 18 May 2009 at 2.15 pm.
3.
Unless by 27 April 2009 the parties having confirmed in writing an agreement as to the market value of the properties situate at Property F and Property R, then each party forthwith do all acts and things necessary to obtain a sworn valuation from an appropriately qualified person, such valuation to be filed with the court not later than 11 May 2009.
4.
The parties ensure that no later than fourteen days prior to the date fixed for the conciliation conference, each party send to the other, and the nominated Registrar:
(a) valuations of any superannuation interests;
(b) a copy of the actual terms of orders required to give effect to their settlement proposal; and
(c) written confirmation by each party or his or her solicitor that:
(i) all relevant documents have been exchanged between the parties; and
(ii) the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
5.
The applicant wife file and serve an amended application setting out the orders she seeks by way of final property orders, together with an updated financial statement 14 days prior to the date of the conciliation conference.
6.
The respondent husband file and serve an amended response setting out the orders he seeks by way of final property orders, together with an updated financial statement 7 days prior to the date of the conciliation conference.
7.
The matter be listed for final hearing on 9 June 2009 at 10.00am before Federal Magistrate Bender (with an estimated hearing time of one day).
8.
The applicant wife file and serve any further affidavit to be relied upon by the applicant by 4.00pm on 26 May 2009.
9.
The respondent husband file and serve any further affidavit to be relied upon by the respondent by 4.00pm on 2 June 2009.
10.
By 4.00pm on 4 June 2009, each party file and serve an outline of case document including the following:
(a) a list of the documents to be relied upon;
(b) a brief chronology;
(c) a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;
(d) a list of contributions claimed or contended for;
(e) a list of other factors relied upon (s.75(2) factors);
(f) the percentage adjustment contended for;
(g) the main contentions on disputes as to:
(i) what items are to be included in the pool; and
(ii) the value of each asset in the pool; and
(h) a statement of the precise orders sought.
11.
The wife’s amended application filed on 15 December 2008 be dismissed.
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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