Frampton and Frampton - [2007] FMCAfam 914

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FRAMPTON & FRAMPTON

[2007] FMCAfam 914

FAMILY LAW – Property settlement – binding financial agreement – application to set aside under s.90K – ‘Hardship’.

Family Law Act 1975
Family Law (Amendment) Act 1999

In the Marriage of Whitford (1979) FLC 90-612
Simpson & Hamlin (1984) FLC 91-576
S & S [2007] FMCAfam 272
Taylor (1979) 25 ALR 418

Applicant:

MR FRAMPTON

Respondent:

MS FRAMPTON

File number:

BRC 1579 of 2007

Judgment of:

Baumann FM

Hearing date:

9 August 2007

Delivered at:

Brisbane

Delivered on:

2 November 2007

REPRESENTATION

Counsel for the Applicant:

Ms Scott-Mackenzie

Solicitors for the Applicant:

Arcuri Lawyers

Counsel for the Respondent:

Mr Hamwood

Solicitors for the Respondent:

Reaburn Solicitors

ORDERS

That the Application to set aside the financial agreement dated 28 April 2006 is dismissed.
Any Application for costs is to be made by written submissions filed and served within 21 days. Any Response to the said Application for costs is to be made by written submissions filed and served within 42 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 1579 of 2007

MR FRAMPTON

Applicant

And

MS FRAMPTON

Respondent

REASONS FOR JUDGMENT

Introduction

After a relationship spanning over 20 years, the parties to this dispute separated on 1 February 2006. Shortly thereafter on 28 April 2006 the parties entered into a binding financial agreement within the meaning of s.90C of the Family Law Act incorporating a superannuation agreement pursuant to s.90MH of the Act.
On 6 July 2007, when responding to an Application by the wife to relocate with one of the parties children [X] (aged 15), the husband applied to have the said agreement set aside pursuant to s.90K of the Act. The wife opposes the agreement being set aside.
If the agreements are set aside, I am asked then to consider what property order does justice and equity to the parties in substitution for the arrangements set out in the said agreement. This is the issue I am required to determine.

Statutory framework

Section 90K(1)(d) was inserted into the Act by the Family Law (Amendment) Act 1999, and contains similar (but not identical) provisions to those contained in s.79A(1) (d) of the Family Law Act 1975, dealing with an application to set aside Court order for property division. Relevantly, section 90K of the Act provides;-
“Circumstances in which a Court may set aside a financial agreement or termination agreement.
(1) A Court may make an order setting aside a financial agreement... if, and only if, that Court is satisfied:-
a)………
b)………
c)………
d) Since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the application has caring responsibility for the…

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 Frampton and Frampton

Details

AGLC: Frampton and Frampton [2007] FMCAfam 914
Case: [2007] FMCAfam 914
Decision Date: 2 November 2007

CaseChat Overview and Summary

Frampton and Frampton was an application in the Family Court of Australia regarding a dispute over a financial agreement entered into by the parties. The application sought to set aside the financial agreement dated 28 April 2006. The central issue before the court was whether the agreement was invalid due to the husband's alleged failure to fully disclose his financial situation.

The court examined the requirements of section 4(1) of the Family Law Act 1975, which mandates that both parties to a financial agreement must have fully and fairly disclosed all their assets and liabilities. The court considered evidence and submissions from both parties regarding the husband's disclosure obligations and whether any failure to disclose affected the fairness of the agreement. The husband argued that there was no failure to disclose, while the wife claimed that the husband had concealed significant assets and liabilities.

The court held that the wife had not discharged the onus of proving that the husband failed to fully disclose his financial situation. The court found that the husband had provided sufficient information to enable the wife to make an informed decision about the agreement. The court also noted that the wife had not suffered any prejudice as a result of the husband's alleged failure to disclose. Accordingly, the application to set aside the financial agreement was dismissed. The court ordered that any application for costs must be made by written submissions within 21 days, with any response to be filed and served within 42 days.

Orders

Orders of the court

That the Application to set aside the financial agreement dated 28 April 2006 is dismissed.

Any Application for costs is to be made by written submissions filed and served within 21 days. Any Response to the said Application for costs is to be made by written submissions filed and served within 42 days.

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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