COLLAGIO & COLLINS - [2015] FamCA 263

FAMILY COURT OF AUSTRALIA

COLLAGIO & COLLINS

[2015] FamCA 263

FAMILY LAW – BINDING FINANCIAL AGREEMENT – where agreement under s 90UC of the Family Law Act 1975 – where de facto husband seeks declaration that agreement is a binding financial agreement under s 90UJ of Part VIIIAB of the Family Law Act 1975 – where de facto wife seeks an order that the agreement is not an agreement to which s 90UC applies or is not binding by reason of s 90UJ of the Act – where the agreement is an agreement to which s 90UC applies – where the agreement is a binding financial agreement under s 90UJ of the Act – where the de facto wife seeks to have the agreement set aside under s 90UM of the Act – where duress, undue influence and unconscionable conduct alleged by the de facto wife – where de facto wife has onus of showing “special relationship or disadvantage” (Louth v Diprose (1992) 175 CLR 621) – where evidence insufficient to demonstrate same in context of relationship and negotiations leading to agreement and where both parties had independent legal advice – where application to set aside binding financial agreement agreement dismissed.

Family Law Act 1975 (Cth) ss 90MHA, 90MJ, 90SA, 90UC, 90UJ, 90UM, 90UN

Barton v Armstrong [1980] AC 614 at 635
Commercial Bank Of Australia Ltd v Amadio and Anor (1983) 151 CLR 447
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 45-6
Hoult & Hoult [2013] FamCAFC 109; 50 Fam LR 260
Louth v Diprose (1992) 175 CLR 621
Parkes [2014] FCCA 102
Wallace & Stelzer and Anor [2013] FamCAFC 199
Whereat v Duff (1973) 1 ALR 363, Parkes [2014] FCCA 102
Yerkey v Jones (1939) 63 CLR 649 at 675

APPLICANT:

Ms Collagio

RESPONDENT:

Mr Collins

FILE NUMBER:

PAC

449

2014

DATE DELIVERED:

16 April 2015

PLACE DELIVERED:

Suburb H

PLACE HEARD:

Suburb H

JUDGMENT OF:

Foster J

HEARING DATE:

27 November 2014 and
26 and 27 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Greenaway on 27 November 2014

Mr Othen on 26 and 27 February 2015

SOLICITOR FOR THE RESPONDENT:

Karen Haga & Associates

Orders

That the financial agreement dated the 7 June 2013 entered into by the parties is a binding financial agreement pursuant to VIIIAB of the Family Law Act 1975.
That any application for costs be by way of application in a case filed within 28 days from this date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collagio & Collins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SUBURB H

FILE NUMBER: PAC 449 of 2014

Ms Collagio

Applicant

And

Mr Collins

Respondent

REASONS FOR JUDGMENT

The de facto husband seeks a declaration that…

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.

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Details

AGLC: COLLAGIO & COLLINS [2015] FamCA 263
Case: [2015] FamCA 263
Decision Date: 16 April 2015

CaseChat Overview and Summary

In the matter of *Collagio & Collins*, Foster J of the Federal Circuit and Family Court of Australia was required to determine the validity of a financial agreement entered into by the parties. The central dispute concerned whether this agreement, dated 7 June 2013, constituted a binding financial agreement under s 90C of the *Family Law Act 1975* (Cth).

The primary legal issue before the Court was whether the financial agreement met the stringent requirements for validity as prescribed by the *Family Law Act 1975*. This involved an examination of the circumstances surrounding its execution and whether it satisfied the conditions necessary to be considered a binding financial agreement, thereby precluding further litigation on the matters it purported to resolve.

Foster J found that the financial agreement dated 7 June 2013 was indeed a binding financial agreement pursuant to s 90C of the *Family Law Act 1975*. The Court's reasoning, though not detailed in the provided text, led to the conclusion that the agreement was validly made and enforceable. Consequently, the Court ordered that the financial agreement be recognised as binding. Any application for costs was to be filed within 28 days of the judgment.

Orders

Orders of the court

That the financial agreement dated the 7 June 2013 entered into by the parties is a binding financial agreement pursuant to VIIIAB of the Family Law Act 1975.

That any application for costs be by way of application in a case filed within 28 days from this date.

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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