DELAHEY & GARRA-MARSH - [2015] FCCA 84

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELAHEY & GARRA-MARSH

[2015] FCCA 84

Catchwords:
FAMILY LAW – Property – binding financial agreement – application for declaration that financial agreement is void – application for declaration that financial agreement is of no force and effect – application to set aside financial agreement – application for property settlement – whether Respondent failed to make full and frank disclosure – where binding financial agreement not set aside – where application for property settlement incompetent.

FAMILY LAW – Maintenance – spousal maintenance – binding financial agreement relating to spousal maintenance – application for declaration that binding financial agreement is void – application for declaration that financial agreement is of no force and effect – application to set aside binding financial agreement – whether agreement signed under duress – where agreement held not to be void, voidable or unenforceable – where no unconscionable conduct established – where no fraud established – where agreement not set aside.

CHILD SUPPORT – Binding child support agreement – application for declaration that binding child support agreement is void – application for declaration that binding child support agreement is of no force and effect – application to set aside binding child support agreement – whether fraud or a failure to disclose material information – whether undue influence or duress – whether unconscionable or other conduct – whether exceptional circumstances relating to a party or a child – whether a party or a child will suffer hardship if the agreement is not set aside – application for lump sum child support – application for departure from administrative assessment of child support – where binding child support agreement not set aside.

WORDS AND PHRASES – “exceptional circumstances” – “material change in circumstances” – whether “exceptional circumstances that have arisen” – imposes a higher threshold to establish than “material change in circumstances”.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.24, 25, 80C, 80D, 81, 82, 83, 84, 117, 123, 136

Family Law Act 1975 (Cth), ss.71A, 79, 90C, 90D, 90E, 90G, 90K

Cases cited:
Black & Black [2008] FamCAFC 7; (2008) 38 Fam LR 503; FLC 93-357
Cameron & Cameron (1988) 12 Fam LR 265; FLC 91-946
Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447; 46 ALR 402
Delahey & Garra-Marsh [2014] FCCA 499
Garra-Marsh & Garra-Marsh [2012] FMCAfam 277
Garra-Marsh & Garra-Marsh (No.2) [2012] FMCAfam 1135
Garra-Marsh & Garra-Marsh (No. 3) [2012] FMCAfam 1144
Kostres & Kostres [2009] FamCAFC 222; (2009) 42 Fam LR 336; FLC 93-420

Applicant:

MS DELAHEY

Respondent:

MR GARRA-MARSH

File Number:

SYC 1541 of 2009

Judgment of:

Judge Scarlett

Hearing dates:

13-14 March 2014

Date of Last Submission:

14 March 2014

Delivered at:

Sydney

Delivered on:

29 January 2015

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Levy

Solicitors for the Respondent:

Abrams Turner Whelan Family Lawyers (but now Pigdon Norgate Family Lawyers)

ORDERS

The applications to set aside the binding financial support agreement made between the parties on…

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 DELAHEY & GARRA-MARSH

Details

AGLC: DELAHEY & GARRA-MARSH [2015] FCCA 84
Case: [2015] FCCA 84
Decision Date: 29 January 2015

CaseChat Overview and Summary

In the Family Court of Australia, Judge Scarlett considered applications by the Respondent to set aside three agreements: a binding financial support agreement dated 17 April 2009, a binding child support agreement dated 17 April 2009, and a binding financial agreement dated 7 August 2009. The Respondent also sought property settlement and orders relating to child support, including a lump sum payment and a departure from an administrative assessment. The core of the dispute revolved around the validity and enforceability of these agreements, with the Respondent alleging fraud, failure to disclose material information, undue influence, duress, unconscionable conduct, and exceptional circumstances.

The court was required to determine whether the binding financial support agreement, the binding child support agreement, and the binding financial agreement were void, voidable, or otherwise unenforceable. Specifically, the court had to consider whether the Respondent had established grounds such as fraud, failure to make full and frank disclosure, undue influence, duress, unconscionable conduct, or exceptional circumstances that would warrant setting aside the agreements or departing from the child support assessment. The court also had to determine if the application for property settlement was competent, given the existence of the binding financial agreements.

Judge Scarlett found that the Respondent failed to establish any grounds to set aside the agreements. The court held that the agreements were not void, voidable, or unenforceable. No unconscionable conduct or fraud was established. The court also determined that the threshold for "exceptional circumstances" required to set aside a binding child support agreement was not met, distinguishing it from a "material change in circumstances." Consequently, the applications to set aside the agreements and for property settlement were dismissed. The applications for lump sum child support and departure from administrative assessment were also dismissed.

Orders

Orders of the court

The applications to set aside the binding financial support agreement made between the parties on 17 April 2009, the binding child support agreement made between the parties on 17 April 2009 and the binding financial agreement between the parties on 7 August 2009 contained in the Amended Response filed on 10 December 2012 are all dismissed.

The application for lump sum child support contained in the Amended Response filed on 10 December 2012 is dismissed.

The application for a departure from administrative assessment of child support contained in the Amended Response filed on 10 December 2012 is dismissed.

The application for an order for adjustment of property interests between the parties under the provisions of section 79 of the Family Law Act 1975 is dismissed.

All other Applications are dismissed.

If either party seeks an order for costs, that party must file and serve an Application in a Case and an affidavit in support setting out the amount of costs sought and the basis upon which those costs are claimed within six (6) weeks of the date of these Orders.

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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