Frederick v Frederick

Case [2019] FamCAFC 87

FAMILY COURT OF AUSTRALIA

FREDERICK & FREDERICK [2019] FamCAFC 87

FAMILY LAW – APPEAL – EVIDENCE – Whether the primary judge erred by giving no weight to the husband’s evidence about the current values of certain assets identified in the parties’ binding financial agreement – Where the evidence was relevant and admissible – Whether the primary judge should have accepted the husband’s evidence despite the fact that evidence capable of being given greater weight could have been called – Error demonstrated.

FAMILY LAW – APPEAL – PROPERTY – Binding financial agreement – Whether the primary judge erred in his assessment of hardship pursuant to s 90K(1)(d) of the Family Law Act 1975 (Cth) – Where there were changed circumstances relating to the care of a child – Where the assessment required a comparison between the position of the child and the person with caring responsibility for her if the agreement is set aside with the position if the agreement remains in place – Where that preliminary assessment required the primary judge to give some weight to the husband’s evidence about the current values of certain assets – Error demonstrated – Appeal allowed – Orders of the primary judge set aside.

FAMILY LAW – APPEAL – PROPERTY – Binding financial agreement – Hardship – Caring responsibility for child – Whether the primary judge erroneously took into account the fact that the wife had not sought a child support assessment and the possibility of the wife seeking spousal maintenance – Whether the primary judge erroneously took into account the “relative care responsibilities” of the parties – Error demonstrated – Where there is merit in the appeal – Appeal allowed.

FAMILY LAW – APPEAL – PROPERTY – Binding financial agreement – Construction – Whether the parties were bound by the values ascribed to certain assets in a schedule to the binding financial agreement or whether the wife had the onus of adducing evidence of the value of the assets at the time the agreement was signed – Where this argument was not raised at trial – Where an objective construction of the schedule suggests that the parties intended to be bound by the values set out in it – Estoppel by convention.
Evidence Act 1995 (Cth) ss 55, 56, 79, 81
Family Law Act 1975 (Cth) ss 44(3), 75(2), 79, 90G, 90K(1)(d)
Family Law Rules 2004 (Cth) r 22.08A
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14
Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121
Fewster & Drake (2016) FLC 93-745; [2016] FamCAFC 214
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1; [2001] HCA 8
Kuru v New South Wales (2008) 236 CLR 1; [2008]…

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AGLC
Frederick v Frederick [2019] FamCAFC 87
Case
[2019] FamCAFC 87
Decision Date

CaseChat Overview and Summary

In the case of Frederick v Frederick, the husband appealed against a decision of the Family Court concerning the validity of a binding financial agreement made by the parties. The husband challenged the primary judge’s refusal to give weight to his evidence regarding the current values of certain assets identified in the agreement. The husband also argued that the primary judge erred in his assessment of hardship and took into account irrelevant factors such as the wife’s failure to seek a child support assessment and the possibility of her seeking spousal maintenance.

The legal issues before the court were whether the primary judge erred in not giving weight to the husband’s evidence about the current values of certain assets, whether the primary judge should have accepted the husband’s evidence despite the fact that evidence capable of being given greater weight could have been called, whether the primary judge erroneously took into account irrelevant factors in his assessment of hardship, and whether the parties were bound by the values ascribed to certain assets in a schedule to the binding financial agreement or whether the wife had the onus of adducing evidence of the value of the assets at the time the agreement was signed.

The court found that the husband had not adequately raised the argument about the lack of evidence regarding the value of the assets in 2007. The court also found that the primary judge did not err in his assessment of hardship, as the assessment required a comparison between the position of the child and the person with caring responsibility for her if the agreement was set aside with the position if the agreement remained in place. The court found that the primary judge erroneously took into account irrelevant factors such as the wife’s failure to seek a child support assessment and the possibility of her seeking spousal maintenance. The court also found that the parties were bound by the values ascribed to certain assets in a schedule to the binding financial agreement.

The appeal was allowed, and the orders of the primary judge were set aside. The Financial Agreement entered into between the parties was set aside, and any party seeking a costs order was to file and serve written submissions as to costs within 14 days of the date of the orders, with the other party to file and serve written submissions in response within a further 14 days, and any written submission in reply to be filed and served within a further 14 days. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The appeal be allowed and the orders made on 28 June 2018 be set aside.

2.

Pursuant to s 90K(1)(d) of the Family Law Act 1975 (Cth) the Financial Agreement entered into between the parties dated 5 February 2007 be set aside.

3.

Any party seeking a costs order is to file and serve written submissions as to costs within 14 days of the date of these orders, with the other party to file and serve written submissions in response within a further 14 days, and any written submission in reply to be filed and served within a further 14 days.

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

The husband submitted that the argument was adequately raised and pointed to the following passages in the transcript:[COUNSEL FOR THE HUSBAND]: When one looks at that section, it isn’t enough to establish that there has been a material change of circumstances relating to the care, welfare and development of a child. What has to be established is that, as a result of the change, the child or the applicant – or if the at (sic) has caring responsibility to the child, a party to the agreement – so, as a result of the change, the party will suffer hardship or the child will suffer hardship if the court does not set the agreement aside. There’s a very real difficulty in circumstances where, under the terms of the financial agreement, a claim remains open if it’s – if it’s – does not set aside – a claim remains open under the – under section 79 for a share of any increase in value in the assets contained in schedule 1 of the financial agreement.Your Honour doesn’t have any valuation evidence of what it was worth then; your Honour doesn’t have any valuation evidence of what it is worth now. I’ve respectfully suggested to my learned friend that that is going to cause grave difficulty for the court in determining whether or not hardship will be suffered at that point in time because I wouldn’t want it to be said that she was taken – my learned friend was taken by surprise when I make that submission at the end of the two days. I’ve been informed that, nonetheless, the wife wishes to proceed with this aspect of her application on the evidence before the court as we stand, and that is, of course, a matter for the wife if that is what she wishes to do, but, as I say, I wouldn’t want it to be said at the end of the case that hasn’t been made abundantly clear, because I should have thought – I won’t say anything further about it. As I say, issues of estoppel will plainly arise if that case is pursued and is dismissed.…[COUNSEL FOR THE HUSBAND]: Well, she has been legally represented by her solicitors throughout this year. She said she had not had the properties valued, either now or – as of now, or as at 2007. And she hadn’t asked her solicitors to do that. It makes it extremely difficult, then, for the mother to say to the court, “I will suffer hardship”, or, “[X] will suffer hardship if you don’t set aside this agreement”, because she hasn’t discharged – your Honour, she hasn’t proved what the pool of property will be for your Honour to ultimately divide up…(Transcript 30 November 2017, p.18 line 32 to p.19 line 7; 1 December 2017, p.72 lines 38–44) (Emphasis added) In addition, in re-examination the husband said he did not have the assets valued in 2007 (Transcript 30 November 2017, p.66 lines 5–6). This was, in our opinion, insufficient clearly to raise the issue. There were but two references in passing to the lack of evidence about the value of the properties in 2007. It was never explained why it was essential for such evidence to be given. No submissions were directed to the proper construction of the Agreement so as to demonstrate that the values in the Schedule were not binding and that evidence of their value was required. If this point was to be taken, express and detailed submissions on these aspects would be expected.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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