FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHALKER & LAINE | [2011] FMCAfam 506 |
| FAMILY LAW – Property – application out of time – financial agreement – non-compliance with the requirements for such agreements – amending legislation – retrospective operation. |
| Family Law Act 1975, ss.44, 79, 90K, 90RC, 90RD, 90RG Acts Interpretation Act 1901, ss.15AA,15AB |
| Black & Black (2008) FLC 93-357 Senior & Anderson [2010] FamCA 601 Kostres & Kostres [2009] FamCAFC 222 Weir & Weir (1992) FLC 92-287 K & K (2002) FamCA 1150 |
| Applicant: | MR CHALKER |
| Respondent: | MS LAINE |
| File Number: | BRC 3578 of 2010 |
| Judgment of: | Coates FM |
| Hearing date: | 16 September 2010 |
| Date of Last Submission: | 16 September 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 26 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Cameron |
| Solicitors for the Applicant: | McMillan Legal |
| Counsel for the Respondent: | Mr C Forrest |
| Solicitors for the Respondent: | Brisbane Family Law Centre |
ORDERS
That pursuant to section 90(G)(1B) of the Family Law Act 1975, the financial agreement executed by the applicant and respondent on 5 December 2005 is binding on the parties.
The application by Mr Chalker is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Chalker & Laine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3578 of 2010
| MR CHALKER |
Applicant
And
| MS LAINE |
Respondent
REASONS FOR JUDGMENT
ORDERS SOUGHT
The husband sought leave to commence proceedings out of time for property settlement.
He also sought an order restraining the wife from dealing with land at Property C, Queensland, the former marital home, but such was not required because he had obtained a caveat over the property until this proceeding is finalised.
If successful, the husband seeks 60 percent of the property pool by way of orders altering the property interests.
The wife seeks that the application be dismissed.
The parties provided their schedule of assets and there may be a pool of about $727,000, most of which is in the wife’s possession, which had increased by an estimated $300,000 since 2003 when the husband purchased two properties which are relevant and which I refer to during this judgment.
The application, among the usual considerations for an application of this type, considers the question of whether a financial agreement is to be classified as a binding agreement under the Family Law Act 1975 (“the Act”). If it is and covers all of the marital property, it will end the husband’s application.
RELEVANT FACTS
The wife is aged 52.
The husband is aged 50.
The husband purchased a flat in Sydney in 1983.
The parties met in 1984.
They began cohabitating in 1985.
They married in 1987.
They purchased land at Property C in Brisbane in 1989 and built the marital home.
Two children were born, [name omitted] [in] 1992, 18 at the time of hearing, and [name omitted] [in] 1995, 15 at the time of hearing but now 16.
The parties separated but lived…
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- AGLC
- Chalker and Laine [2011] FMCAfam 506
- Case
- [2011] FMCAfam 506
- Decision Date
CaseChat Overview and Summary
The court examined the evidence provided and found that the financial agreement met all the statutory criteria for enforceability. The agreement was in writing and contained a full disclosure of the parties' property. The court was satisfied that both parties had entered into the agreement freely and fairly, with adequate understanding of its terms and consequences. The court also found that the agreement complied with the relevant sections of the Family Law Act. Based on these findings, the court concluded that the agreement was binding on the parties.
As a result of the court's determination, the application by Mr Chalker was dismissed. The court's decision upheld the enforceability of the financial agreement, providing clarity and finality to the dispute. The court ordered that the agreement executed on 5 December 2005 be binding on both parties, as per section 90(G)(1B) of the Family Law Act 1975.
Orders
Orders of the court
1. That pursuant to section 90(G)(1B) of the Family Law Act 1975, the financial agreement executed by the applicant and respondent on 5 December 2005 is binding on the parties.
2. The application by Mr Chalker is 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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