Gardiner and BAKER - [2009] FMCAfam 1029

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARDINER & BAKER

[2009] FMCAfam 1029

FAMILY LAW – Property – validity of binding financial agreement – costs.

Family Law Act 1975 (Cth) – Part VIII & VIIIA

Black & Black [2008] FamCA FC 7; (2008) 38 FamLR 503
J & J [2006] FamCA 442 (unreported)
Norton & Norton [2009] FamCA 359
Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230 at 25

Applicant:

MS GARDINER

Respondent:

MR BAKER

File Number:

NCC 63 of 2008

Judgment of:

Coakes FM

Hearing date:

18 September 2009

Date of Last Submission:

18 September 2009

Delivered at:

Newcastle

Delivered on:

18 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr Duane

Solicitors for the Applicant:

Mark Evans & Associates

Counsel for the Respondent:

Mr Tregilgas

Solicitors for the Respondent:

Braye Cragg Solicitors

ORDERS

It is declared that the financial agreement executed by the husband and the wife and dated 24 August 2005 is not a financial agreement for the purposes of Part VIII and Part VIIIA of the Family Law Act1975, and the provision of the Act do not apply.
The financial agreement entered into between the husband and wife pursuant to s.90C of the Family Law Act 1975 and dated 24 August 2005 is set aside pursuant to s.90K(1)(b) of the Act.
The husband pay the professional costs of the wife of today assessed at $4950.00 inclusive of GST, payment to be made not later than 12.00noon on 16 October 2009 to the Solicitors for the wife, Mark Evans and Associates at Suite 7, 87 Frederick Street Merewether NSW 2291
The matter is adjourned to 10.00am on 8 September 2010 at Newcastle for a final hearing, two days allowed.
That the parties and their Solicitors are to attend a conciliation conference at 9.15am on 2 October 2009 with a Registrar.
Each party is required to complete, file and exchange the financial questionnaire for submission to the Registrar by 25 September 2009.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Coakes delivered this day will for all publication and reporting purposes be referred to as Gardiner & Baker.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC 63 of 2008

MS GARDINER

Applicant

And

MR BAKER

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

(Edited from the transcript)

Introduction

In these proceedings I now deliver an ex tempore judgment following the hearing of this matter early today and which proceeded by way of submission, as was agreed by counsel for the respective parties.
The application before me today is brought by the wife. She seeks to set aside a binding financial agreement (“the agreement”)entered into between the parties pursuant to section 90C of the Family Law Act on 24 August 2005. The husband opposes that application.

The agreement

Before me is an agreement between the husband and the wife entered into on 24 August 2005. The agreement comprises a number of clauses set out under the subheading Background and then a number…

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 Gardiner and BAKER

Details

AGLC: Gardiner and BAKER [2009] FMCAfam 1029
Case: [2009] FMCAfam 1029
Decision Date: 18 September 2009

CaseChat Overview and Summary

The matter in Gardiner and Baker was heard in the Family Court of Australia. The dispute centred around a financial agreement executed between the husband and wife on 24 August 2005. The wife sought a declaration that the agreement did not constitute a financial agreement under the Family Law Act 1975, and also sought an order setting aside the agreement on the grounds it was not fairly and reasonably negotiated. The court was required to determine the validity and enforceability of the financial agreement, specifically whether it complied with the requirements of the Family Law Act.

The court examined the provisions of Part VIII and Part VIIIA of the Family Law Act, which govern financial agreements between spouses. The primary issue was whether the agreement met the criteria for a valid financial agreement, including being in writing and signed by both parties, and whether it was fairly and reasonably negotiated. The court considered evidence regarding the circumstances of the agreement's execution, including whether there was any undue influence or lack of understanding by either party. After reviewing the evidence, the court concluded that the agreement did not meet the statutory requirements for a financial agreement.

In its decision, the court held that the financial agreement was not valid and enforceable under the Family Law Act. The court set aside the agreement and declared that the provisions of the Act did not apply. Additionally, the court ordered the husband to pay the wife's professional costs. The matter was adjourned to a later date for a final hearing, and the parties were directed to attend a conciliation conference and complete financial questionnaires. The orders reflected the court's determination that the financial agreement was invalid and the need for further proceedings to address the financial matters between the parties.

Orders

Orders of the court

It is declared that the financial agreement executed by the husband and the wife and dated 24 August 2005 is not a financial agreement for the purposes of Part VIII and Part VIIIA of the Family Law Act 1975, and the provision of the Act do not apply.

The financial agreement entered into between the husband and wife pursuant to s.90C of the Family Law Act 1975 and dated 24 August 2005 is set aside pursuant to s.90K(1)(b) of the Act.

The husband pay the professional costs of the wife of today assessed at $4950.00 inclusive of GST, payment to be made not later than 12.00noon on 16 October 2009 to the Solicitors for the wife, Mark Evans and Associates at Suite 7, 87 Frederick Street Merewether NSW 2291

The matter is adjourned to 10.00am on 8 September 2010 at Newcastle for a final hearing, two days allowed.

That the parties and their Solicitors are to attend a conciliation conference at 9.15am on 2 October 2009 with a Registrar.

Each party is required to complete, file and exchange the financial questionnaire for submission to the Registrar by 25 September 2009.

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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