CORDING & OSTER - [2010] FamCA 511

FAMILY COURT OF AUSTRALIA

CORDING & OSTER

[2010] FamCA 511

FAMILY LAW – PROPERTY – Financial agreement – Part VIIIAB of the Act – Language of the parties to be assessed objectively – Requirement for parties to have legal advice: standard of advice not necessarily a matter for the Court – Agreement executed in Victoria before commencement of Part VIIIAB but contemplating its operation – Agreement found to be binding – Discussion about property of corporate entity of which one party is director – property covered by definition in agreement – Notwithstanding the removal of the corporate veil, property is still defined by shareholding or loan account

Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Property Law Act 1958 (Vic).
Relationship Act 2008 (Vic)

Blomley v Ryan (1956) 99 CLR 362
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Fevia & Carmel-Fevia (2009) FLC 93-411
Kokl and Kokl (1981) FLC 91-078
Kostres and Kostres [2009] FamCAFC 222
Meehan v Jones (1982) 149 CLR 571
Tasmania v Commonwealth (1904) 1 CLR 329

APPLICANT:

Ms Cording

RESPONDENT:

Mr Oster

FILE NUMBER:

MLC

9248

2009

DATE DELIVERED:

26 May 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

22 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

DR KOVACS AND MS TEICHER

SOLICITOR FOR THE APPLICANT:

STIDSTON & WILLIAMS WEBLAW

COUNSEL FOR THE RESPONDENT:

MR NORTH SC

SOLICITOR FOR THE RESPONDENT:

RICHARD CALLEY FAMILY LAWYERS

Orders

The agreement dated 7 October 2008 between MS CORDING and MR OSTER is a valid and binding financial agreement for the purposes of Part VIIIAB of the Family Law Act 1975 (Cth).
That there is no property of the parties which is not covered by the financial agreement.
All extant injunctive orders are forthwith discharged.
Save as to issues of costs, all outstanding applications of the parties are dismissed.
Any issue as to costs shall be determined upon written submission filed and served by 4.00pm on 14 June 2010 and to which any reply must be filed and served by 21 June 2010 and thereafter determined in chambers.
Certify for the attendance of counsel, including senior counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9248 of 2009

MS CORDING

Applicant

And

MR OSTER

Respondent

REASONS FOR JUDGMENT

In determining whether a document executed before the commencement of Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) by parties who did not marry, is a financial agreement as defined under the Act, reference needs to be made to the principles of contract and equity.
For the parties’ document to be a financial agreement, the legislature has clearly and carefully required that there be strict compliance with the Act. (See Kostres and Kostres [2009] FamCAFC 222).
In

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 CORDING & OSTER

Details

AGLC: CORDING & OSTER [2010] FamCA 511
Case: [2010] FamCA 511
Decision Date: 26 May 2010

CaseChat Overview and Summary

In the matter of Cording & Oster, Justice Cronin of the Family Court of Australia considered the validity of a financial agreement entered into between MS Cording and MR Oster on 7 October 2008. The dispute concerned the extent to which this agreement governed the division of the parties' property.

The primary legal issue before the Court was whether the financial agreement dated 7 October 2008 constituted a valid and binding financial agreement for the purposes of Part VIIIAB of the *Family Law Act 1975* (Cth). A further issue was to determine if any property of the parties remained outside the scope of this agreement.

Justice Cronin found that the agreement was indeed a valid and binding financial agreement under the *Family Law Act 1975*. Consequently, the Court determined that there was no property of the parties that was not covered by the financial agreement. The Court then discharged all existing injunctive orders and dismissed all outstanding applications by the parties, save for any issues relating to costs. The determination of costs was to be made upon written submissions, with a timetable set for their filing and service. The Court also certified for the attendance of counsel, including senior counsel.

Orders

Orders of the court

The agreement dated 7 October 2008 between MS CORDING and MR OSTER is a valid and binding financial agreement for the purposes of Part VIIIAB of the Family Law Act 1975 (Cth).

That there is no property of the parties which is not covered by the financial agreement.

All extant injunctive orders are forthwith discharged.

Save as to issues of costs, all outstanding applications of the parties are dismissed.

Any issue as to costs shall be determined upon written submission filed and served by 4.00pm on 14 June 2010 and to which any reply must be filed and served by 21 June 2010 and thereafter determined in chambers.

Certify for the attendance of counsel, including senior counsel.

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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