FAMILY COURT OF AUSTRALIA
| DAILY & DAILY | [2020] FamCA 486 |
| FAMILY LAW – PROPERTY SETTLEMENT – Financial Agreement – Where the wife seeks a declaration that the agreement is not a binding financial agreement or that it be set aside pursuant to s 90K of the Family Law Act 1975 (Cth) – Where the husband seeks that the agreement be declared binding and that it be enforced pursuant to s 90KA of the Act – Where the parties entered into a financial agreement in 2005 – Consideration and application of the Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth) – Where handwritten amendments were made to the agreement by the husband’s solicitor after the wife had signed the agreement – Where the wife and her solicitor subsequently initialled the amendments – Whether the requisite independent legal advice was provided to the wife – Where the advice does not satisfy the legislative requirements – Where it would be unjust and inequitable if the agreement was not binding on the parties – Whether there has been a material change in circumstances in relation to the care, welfare and development of a child to the marriage that would result in hardship if the agreement was not set aside – Where two children of the relationship were born following the marriage – Where the wife ceased fulltime employment to be the primary caregiver for the children – Consideration of the personal and financial circumstances of the parties in determining whether hardship will be sustained – Where the agreement is set aside. |
| Family Law Act 1975 (Cth) ss 4, 71A, 75(2), 79, 90B, 90G, 90G, 90K, 90KA Family Law Amendment Act 2000 (Cth) Sch 2 Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth) Sch 5 Law of Property Act 1936 (SA) |
| ADX Building Systems P/L v Macleod & Ors [2014] SADC 212 Fewster & Drake (2016) FLC 93-745 Frederick & Frederick (2019) FLC 93-900 Goddard’s Case (1584) 2 Co.Rep 4b; 76 ER 396 Hoult & Hoult (2013) FLC 93-546 Parker & Parker [2010] FamCA 664 Parker & Parker (2012) FLC 93-499 Pascot & Pascot [2011] FamCA 945 Ruane & Bachmann-Ruane [2009] FamCA 1101 Senior & Anderson (2011) FLC 93-470 Thorne v Kennedy (2017) 263 CLR 85 Wallace & Stelzer and Anor (2013) FLC 93-566 |
Explanatory Memorandum to the Federal Justice System Amendment (Efficiency Measures) Bill (No.1) 2008 (Cth)
Robert F Norton, A Treatise on Deeds, ed Robert J A Morrison and Hugh J Goolden (Sweet & Maxwell, 2nd ed, 1928)
| APPLICANT: | Mr Daily |
| RESPONDENT: | Ms Daily |
| FILE NUMBER: | ADC | 4606 | of | 2018 |
| DATE DELIVERED: | 17 June 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 27 April 2020 to 1 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Robertson SC and Ms Miller |
| SOLICITOR FOR THE APPLICANT: | Jordan & Fowler Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke QC |
| SOLICITOR FOR THE RESPONDENT: | Norman Waterhouse Lawyers |
Orders
That pursuant to s 90K(1)(d) of the
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- DAILY & DAILY [2020] FamCA 486
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- [2020] FamCA 486
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CaseChat Overview and Summary
In the matter of DAILY & DAILY, the wife sought a declaration that a financial agreement entered into by the parties in 2005 was not binding, or alternatively, that it be set aside pursuant to s 90K of the *Family Law Act 1975* (Cth). The husband sought to have the agreement declared binding and enforced under s 90KA of the Act.
The court was required to determine whether the financial agreement was binding, considering handwritten amendments made after the wife had signed, which were subsequently initialled by both parties and their respective solicitors. Key issues included whether the requisite independent legal advice was provided to the wife, and whether it would be unjust and inequitable to uphold the agreement. The court also considered whether there had been a material change in circumstances regarding the care of the parties' two children, born after the marriage, which would result in hardship if the agreement were not set aside, particularly given the wife's cessation of fulltime employment to become the primary caregiver.
Berman J found that the legal advice provided to the wife did not satisfy the legislative requirements for independent legal advice under the Act. Furthermore, the court determined that it would be unjust and inequitable if the agreement were to remain binding on the parties, especially in light of the significant changes in their personal and financial circumstances since its execution, including the wife's role as primary caregiver.
Consequently, the court ordered that the financial agreement entered into between the parties on 21 July 2005 be set aside pursuant to s 90K(1)(d) of the *Family Law Act 1975* (Cth).
The court was required to determine whether the financial agreement was binding, considering handwritten amendments made after the wife had signed, which were subsequently initialled by both parties and their respective solicitors. Key issues included whether the requisite independent legal advice was provided to the wife, and whether it would be unjust and inequitable to uphold the agreement. The court also considered whether there had been a material change in circumstances regarding the care of the parties' two children, born after the marriage, which would result in hardship if the agreement were not set aside, particularly given the wife's cessation of fulltime employment to become the primary caregiver.
Berman J found that the legal advice provided to the wife did not satisfy the legislative requirements for independent legal advice under the Act. Furthermore, the court determined that it would be unjust and inequitable if the agreement were to remain binding on the parties, especially in light of the significant changes in their personal and financial circumstances since its execution, including the wife's role as primary caregiver.
Consequently, the court ordered that the financial agreement entered into between the parties on 21 July 2005 be set aside pursuant to s 90K(1)(d) of the *Family Law Act 1975* (Cth).
Orders
Orders of the court
1.
That pursuant to s 90K(1)(d) of the Family Law Act 1975 (Cth) the financial agreement entered into between the parties dated 21 July 2005 be set aside.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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