CALLANAN & CALLANAN

[2015] FCCA 1248

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALLANAN & CALLANAN [2015] FCCA 1248

Catchwords:
FAMILY LAW – Section 90B Financial Agreement signed November 2006 – Husband, who migrated from (country omitted) in mid-2006, seeks to set aside Agreement and leave to file property and spouse maintenance application –whether Agreement signed 5 or 12 days before wedding – whether fraud/deceit, undue influence or duress or unconscionable conduct by Wife or the solicitors – whether material change in circumstances relating to child under s.90K(1)(d) - whether independent legal advice provided by Husband’s solicitor – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.90B, 90G, 90K and 90KA

Hoult & Hoult [2013] FamCAFC 109
Pascot & Pascot [2011] FamCA 945
Saintclaire & Saintclaire [2013] FamCA 491

Senior & Anderson [2011] FamCAFC 129

Applicant: MR CALLANAN

Respondent: MS CALLANAN

File Number: SYC 1987 of 2011

Judgment of: Judge Sexton

Hearing dates: 23 and 24 February 2015

Date of Last Submission: 24 February 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent:

Solicitors for the Respondent:

Mr R. Schonell SC

Broun Abrahams Burreket

ORDERS

1. The Husband’s Applications to set aside the Financial Agreement dated 20 November 2006, and for leave to file an Amended Response for property settlement and spouse maintenance, be consolidated.

2. The Husband’s consolidated applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Callanan & Callanan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1987 of 2011

MR CALLANAN

Applicant

And

MS CALLANAN

Respondent

REASONS FOR JUDGMENT

Introduction 

1. The Husband seeks to set aside a Financial Agreement entered into by the parties before their marriage, and dated 20 November 2006 (the Agreement).[1]  He also seeks leave to file and serve a further Amended Response for orders for property settlement and spouse maintenance. The Wife seeks a consolidation and dismissal of the Husband’s applications.   

   [1] Annexure 7 to Husband’s affidavit sworn on 20 May 2013

2. The Court must determine whether (1) there is a valid financial agreement,  (2) if so, whether it should be set aside and (3) if not, whether it is binding.[2]

   [2] At paragraph 3 of Saintclaire & Saintclaire [2013] FamCA 491

3. The Husband was self-represented, assisted by an interpreter in the (language omitted) language. The Wife was represented by Broun Abrahams Burreket, solicitors and at hearing by Mr Richard Schonell S.C. 

Background facts

1. The Husband, aged 47, was born in (country omitted).  

2. The Wife, aged 43, was born in Sydney.

3. The parties met in (omitted) 2002 in (omitted), a city on the (omitted) in (country omitted), when the Wife was on a 3 week holiday.  The Husband was employed in a tourist area at a (employer omitted) called (omitted), as a (occupation omitted).

4. In (omitted) 2003, the parties commenced a relationship. In (omitted) 2004, the Wife rented an apartment in (country omitted).  The Husband owned and lived in a one bedroom apartment known as…