Grant and Grant-Lovett

[2010] FMCAfam 162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRANT & GRANT-LOVETT [2010] FMCAfam 162

FAMILY LAW – Application to set aside a binding financial agreement – application to enforce agreement – non-compliance with s.90G – non-disclosure under s.90K(1)(a) – defence of estoppel.

Family Law Act 1975 ss.79, 90B, 90C, 90G, 90K, 90KA

Black & Black [2008] FamCAFC 7
Kostres & Kostres [2009] FamCAFC 222
Fevia v Carmel-Fevia [2009] FamCA 816
Kennon v Spry (2008) 83 ALJR 145
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447

Applicant: MR GRANT

Respondent: MS GRANT-LOVETT

File Number: WOC 1152 of 2008

Judgment of: Altobelli FM

Hearing date: 9 November 2009

Date of Last Submission: 9 November 2009

Delivered at: Sydney

Delivered on: 19 March 2010

REPRESENTATION

Counsel for the Applicant: Mr Maurice

Solicitors for the Applicant: RMB Family Law

Counsel for the Respondent: Mr Moss

Solicitors for the Respondent: Marriott & Oliver Solicitors

ORDERS

1. The document which purports to be a binding financial agreement dated 28 June 2002 is set aside.

2. The parties attend a conciliation conference on 23 April 2010 at 11am in Wollongong with a view to settling the claim.

3. The parties comply with rule 24.04 of the Federal Magistrates Rules by serving on each other copies of the documents listed in that Rule by no later than 4.00 p.m. on 8 April 2010. Namely:

   (a)Copies of 3 most recent taxation returns;

   (b)Copies of 3 most recent taxation assessments;

   (c)If the party is a member of a superannuation plan:

   (i)     if not already filed or exchanged – the completed superannuation information form for any superannuation interest of the party;

   (ii)for a self-managed superannuation fund- the trust deed and copies of the 3 most recent financial statements for the fund;

   (d)If the party has an ABN, copies of the last 4 business activity statements lodged, if any, and:

   (e)The 3 most recent financial statements and the last 4 business activity statements of any partnership, trust or company (other than a public company) in which that party has an interest.

4. The matter be adjourned for mention to 5 May 2010 at 9.30am in Wollongong.

5. The Respondent wife file an Amended response within 28 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

WOC 1152 of 2008

MR GRANT

Applicant

And

MS GRANT-LOVETT

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. This is an application by the applicant husband to set aside a binding financial agreement that he entered into with the respondent wife, and which is dated 28 June 2002.  The matter was set down for hearing before me on the discrete issue as to the validity of the binding financial agreement and on the basis that if the agreement was set aside, any hearing of matters arising under section 79 of the Family Law Act would be dealt with at a later time.

2. The applicant husband is 55 years…