Frederick v Frederick

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.