Bondelmonte v Bondelmonte & Anor - [2016] HCATrans 299

[2016] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S247 of 2016

B e t w e e n -
BONDELMONTE
Appellant
and
BONDELMONTE
First Respondent
INDEPENDENT CHILDREN’S LAWYER
Second Respondent

KIEFEL J
BELL J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 DECEMBER 2016, AT 10.14 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR R.M. SCHONELL, SC and MR S.J. WILLIAMS, for the appellant. (instructed by Karras Partners Lawyers)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MS S.M. CHRISTIE, for the second respondent. (instructed by Legal Aid NSW)

KIEFEL J: The first respondent has filed a submitting appearance. Yes, Mr Walker.

MR WALKER: If it please the Court. Your Honours, this is an appeal against the dismissal of an appeal to the Full Court from the orders that you will find in volume 2 of the appeal book, starting at page 521. As your Honours know from the written submissions, the orders that are at the heart of the controversy are found on page 522, starting with number 8. This has been variously described as a set of options, or “cascade”, which commences with 8, so that the children there named are – in 8, subject to 9 – to live with the mother. “Live with” is a term of art; it describes a parenting order.

In 9, to which 8 is subject, in the event my client returns to Australia with the boys, the boys “can continue to live with him”. In the event that my client does not return to Australia with the boys, they are “to live with their mother” – that is going back, as it were, to number 8 – provided that if one or other of them, or both, “choose to do so” – so there is an option – “they may live either” – there is an option – one, in accommodation paid for by my client with services the mother consents to, or, two – at the heart of the controversy today – one may live with one named volunteer, as I have called them, and the other may live with another one.

Your Honours will see that although numbers 10 and 11, including 11, have to do with further steps in what I will call proceedings generally, one thing which is absent entirely from these orders, including 1 to 7 that I have skipped over, is any reference to “taking steps” in the various ways that the Act and Rules contemplate to ascertain anything further about the boys’ wishes in relation to that range of options. Your Honours, at the heart of the facts in the case is, of course, the age of the two boys, to which reference is made in paragraph 6 of our outline. The oldest one will…

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 Bondelmonte v Bondelmonte & Anor

Details

AGLC: Bondelmonte v Bondelmonte & Anor [2016] HCATrans 299
Case: [2016] HCATrans 299
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Bondelmonte v Bondelmonte & Anor*. The dispute concerned the interpretation and application of a financial agreement made between the parties pursuant to the *Family Law Act 1975* (Cth). The primary issue before the Court was whether the financial agreement was binding on the parties, notwithstanding certain alleged circumstances that arose after its execution.

The central legal question before the High Court was whether the financial agreement, which purported to deal with the division of property upon the breakdown of the marriage, remained binding and enforceable in light of events that occurred subsequent to its making. Specifically, the Court was required to consider the circumstances under which a financial agreement, validly made under the *Family Law Act*, could be set aside or deemed unenforceable due to factors arising after its execution, and whether those circumstances were present in this instance.

The High Court's reasoning focused on the statutory framework governing financial agreements under the *Family Law Act*. The Court affirmed that a financial agreement, once validly made, is binding unless specific grounds for setting it aside are established. These grounds are generally limited to those expressly provided for in the Act, such as fraud, misrepresentation, duress, or a material change in circumstances that makes the agreement voidable. The Court analysed the evidence presented in relation to the alleged post-execution circumstances and concluded that they did not meet the threshold required to invalidate the agreement. The Court emphasised the importance of upholding the integrity and finality of financial agreements entered into by parties with the intention of resolving their property matters.

The High Court allowed the appeal, finding that the financial agreement was binding and enforceable. The Court set aside the orders of the Full Court of the Family Court of Australia and remitted the matter to the Family Court for further proceedings consistent with the High Court's judgment.

Orders