FAMILY COURT OF AUSTRALIA
| FEWSTER & DRAKE | [2015] FamCA 602 |
FAMILY LAW – BINDING FINANCIAL AGREEMENT – where agreement under s 90C of the Family Law Act 1975 – where the agreement is conceded to be a binding financial agreement under s 90G of the Act – where the wife seeks to have the agreement set aside under s 90K of the Act – where wife asserts material change in circumstances under s 90K(1)(d) of the Act – where hardship shown – where agreement set aside.
FAMILY LAW – BINDING FINANCIAL AGREEMENT – where agreement under s 90C of the Family Law Act 1975 – where the agreement is conceded to be a binding financial agreement under s 90G of the Act – where the wife seeks to have the agreement set aside under s 90K of the Act – where duress, undue influence and unconscionable conduct alleged by the wife – where 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 on this ground dismissed.
FAMILY LAW – BINDING FINANCIAL AGREEMENT – where agreement under s 90C of the Family Law Act 1975 – where the agreement is conceded to be a binding financial agreement under s 90G of the Act – where the wife seeks to have the agreement set aside under s 90K of the Act – where wife asserts repudiation of the agreement by the husband – where wife asserts husband estopped by conduct from asserting validity of agreement – where application to set aside binding financial agreement on this ground dismissed.
FAMILY LAW – BINDING FINANCIAL AGREEMENT – where agreement under s 90C of the Family Law Act 1975 – where the agreement is conceded to be a binding financial agreement under s 90G of the Act – where the wife seeks to have the agreement set aside under s 90K of the Act – where wife asserts fraud by reason of non-disclosure by the husband at time of agreement – where application to set aside binding financial agreement on this ground dismissed.
FAMILY LAW – SPOUSE MAINTENANCE – interim spouse maintenance – where consideration of the wife’s reasonable needs – where wife unable to support herself adequately – where husband concedes capacity to meet order – order for interim spouse maintenance.
| Family Law Act 1975 (Cth) ss 72, 74, 75(2), 79(4), 90C, 90E, 90G, 90K, 90KA |
Family Provisions Act 1982 (NSW)
Australia & New Zealand Banking Group v Karam [2005] NSWCA 344
Barton v Armstrong [1980] AC 614
Bevan & Bevan (1995) FLC 92-600
Commercial Bank Of Australia Ltd v Amadio and Anor (1983) 151 CLR 447
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Donald and Forsyth
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- AGLC
- FEWSTER & DRAKE [2015] FamCA 602
- Case
- [2015] FamCA 602
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on the application of section 90K(1)(d) of the *Family Law Act 1975*. This provision allows for a financial agreement to be set aside if, by reason of the making of the agreement, a party to the agreement suffered hardship and, having regard to the circumstances that have arisen since the agreement was made, it is just and equitable to make the order. The court found that the criteria for setting aside the agreement under this section were met.
Consequently, the court ordered that the financial agreement between the parties dated 22 December 2006 be set aside under section 90K(1)(d) of the *Family Law Act 1975*. Additionally, the court made interim orders for spouse maintenance, requiring the husband to pay $1,500 per week to the wife, with the first payment due within seven days of the order. The court also reserved judgment on costs pending further submissions from the parties.
Orders
Orders of the court
1.
That the financial agreement between the parties dated 22 December 2006 be set aside under s 90K(1)(d) of the Family Law Act 1975.
2.
That by way of interim spouse maintenance pending further order the husband pay to the wife by way of deposit to a bank account nominated by the wife in writing including SMS or email communication within 2 days from the date of this order $1,500 per week first payment within 7 days from the date of this order.
3.
That in the event of an application for costs the wife file and serve any submissions in support thereof within 21 days from the date of these orders and the husband any submissions in response thereto within a further 14 days and that thereafter judgment as to costs to be reserved to a date to be fixed.
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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