Chalker and Laine - [2011] FMCAfam 506

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…

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 Chalker and Laine

Details

AGLC: Chalker and Laine [2011] FMCAfam 506
Case: [2011] FMCAfam 506
Decision Date: 26 May 2011

CaseChat Overview and Summary

The case between Chalker and Laine was heard in the Family Court of Australia. The primary issue in dispute was the enforceability of a financial agreement executed by the parties on 5 December 2005. Mr Chalker sought to have the agreement declared binding, while Ms Laine contested its enforceability. The legal questions the court had to resolve included whether the agreement was made in writing, disclosed all of the parties' property, and was made freely and fairly. Additionally, the court had to consider whether the agreement complied with the requirements of the Family Law Act 1975.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.