DELRIO & JINDRA - [2019] FCCA 1186

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELRIO & JINDRA

[2019] FCCA 1186

Catchwords:
FAMILY LAW – Property – application to set aside a Financial Agreement – declaration as to the Financial Agreement.

Legislation:

Family Law Act 1975 (Cth), ss.79, 90G, 90K, 90KA

Cases cited:

Annabel & Kelsey [2014] FamCA 110

Brewer v Brewer [1953] HCA 19

Daniels & Daniels [2009] FamCA 1152

Hoult & Hoult [2013] FamCAFC 109

In the Marriage of Schorel (1990) FLC 92-144

Parker & Parker [2012] FamCAFC 33

Thorne v Kennedy [2017] HCA 49

Waterford v Commonwealth [1987] HCA 25

Applicant:

MR DELRIO

Respondent:

MS JINDRA

File Number:

WOC 1021 of 2017

Judgment of:

Judge Altobelli

Hearing dates:

28 – 29 March 2019

Date of Last Submission:

29 March 2019

Delivered at:

Wollongong

Delivered on:

12 June 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Mr Campton SC

Solicitors for the Respondent:

Delaney Lawyers

ORDERS

Orders 1 and 2 of the Husband’s Further Amended Initiating Application filed 26 March 2018 be dismissed.
The remaining Orders sought by the Applicant Husband be stood over for directions on 17 September 2019 at 9:30am.
Orders 1 and 2 of the Wife’s Response to the Amended Application of the Husband filed in Court on 23 October 2018 be dismissed.
Any application for costs be provided by way of written submissions and evidence in support as follows:
(a)The Applicant for costs file and serve within 28 days written submissions not exceeding 500 words, together with any further evidence in support; and
(b)The Respondent to the costs application within a further 28 days file and serve written submissions not exceeding 500 words, together with any further evidence in support;
(c)The Applicant for costs file and serve within a further 14 days written submissions in reply not exceeding 250 words.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1021 of 2017

MR DELRIO

Applicant

And

MS JINDRA

Respondent

REASONS FOR JUDGMENT

Introduction and Background

The Applicant Husband and Respondent Wife were in a relationship, married, and then separated. This litigation is about the document that purports to be a Financial Agreement dated … 2011 (“the agreement”) pursuant to Part VIIIA of the Family Law Act 1975 (Cth) (“the Act”). The Applicant Husband asks the Court to either declare that the agreement is not binding or alternatively set it aside or declare it void and to make orders under section 79 of the Act. The Respondent Wife seeks an order that the Husband’s application be dismissed, as well as a declaration that the agreement is binding on the parties.
The Applicant Husband describes himself as a tradesman, he is 44 years old and lives in the Region A region of New South Wales. The Respondent Wife is 44 years old, describes herself as a self-employed company director, and lives on the Region B of New…

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 DELRIO & JINDRA

Details

AGLC: DELRIO & JINDRA [2019] FCCA 1186
Case: [2019] FCCA 1186
Decision Date: 12 June 2019

CaseChat Overview and Summary

This matter concerned an application by the Husband to set aside a Financial Agreement and for a declaration as to its validity. The Wife sought orders dismissing the Husband's application.

The primary legal issue before Judge Altobelli was whether the Financial Agreement was binding on the parties, or if it should be set aside. This required the Court to consider the circumstances under which a Financial Agreement, made under Part VIIIA of the *Family Law Act 1975* (Cth), could be invalidated.

The Court dismissed the Husband's application to set aside the Financial Agreement and also dismissed the Wife's response to the Husband's amended application. The remaining orders sought by the Husband were stood over for further directions. The parties were to provide written submissions and evidence regarding any applications for costs.

Orders

Orders of the court

Orders 1 and 2 of the Husband’s Further Amended Initiating Application filed 26 March 2018 be dismissed.

The remaining Orders sought by the Applicant Husband be stood over for directions on 17 September 2019 at 9:30am.

Orders 1 and 2 of the Wife’s Response to the Amended Application of the Husband filed in Court on 23 October 2018 be dismissed.

Any application for costs be provided by way of written submissions and evidence in support as follows:

(a) The Applicant for costs file and serve within 28 days written submissions not exceeding 500 words, together with any further evidence in support; and

(b) The Respondent to the costs application within a further 28 days file and serve written submissions not exceeding 500 words, together with any further evidence in support;

(c) The Applicant for costs file and serve within a further 14 days written submissions in reply not exceeding 250 words.

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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