Hagan and Cann - [2011] FMCAfam 1507

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAGAN & CANN

[2011] FMCAfam 1507

FAMILY LAW – Property – binding financial agreement – failure to obtain independent legal advice.

Family Law Act 1975, ss.79, 90G

Parker & Parker (2010) 43 Fam LR 548
Ruane & Bachman-Ruane & Ors [2009] FamCA 1101
Senior & Anderson (2011) FLC 93-470
Wallace & Stelzer [2011] FamCA 54

Applicant:

MS HAGAN

Respondent:

MR CANN

File Number:

ROC 215 of 2011

Judgment of:

Cassidy FM

Hearing date:

16 September 2011

Date of Last Submission:

16 September 2011

Delivered at:

Rockhampton

Delivered on:

16 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr Fleetwood

Solicitors for the Applicant:

Madden Solicitors

Counsel for the Respondent:

Ms Carmody

Solicitors for the Respondent:

Carne Reidy Herd

THE COURT ORDERS:

That the Financial Agreement dated 7 May 2008 be set aside.

THE COURT ORDERS BY WAY OF CONSENT ON A FINAL BASIS:

That within forty-five (45) days the Husband pay to the Wife the amount of $55,000 made payable to the Trust Account of Madden Solicitors.
That except as otherwise specified in these Orders the Wife forthwith retain all her right title and interest in and to and the Husband relinquish all his right title and interest to and in:-
(a)Furniture & Chattels in the Wife’s possession;
(b)Any money standing in any bank accounts in the Wife’s name;
(c)Any superannuation entitlements in the Wife’s name;
(d)Any motor vehicle in the Wife’s possession.
That except as otherwise specified in these Orders the Husband forthwith retain all his right title and interest in and to and the Wife relinquish all her right title and interest to and in:
(a)Property H;
(b)(omitted) motorbike;
(c)The business (omitted) trading as (omitted);
(d)(omitted) Boat;
(e)Furniture & Chattels retained in the Husband ’s possession;
(f)Any money standing in any bank accounts in the Husband ’s name;
(g)Any superannuation entitlements in the Husband ’s name;
(h)Any motor vehicle in the Husband’s possession.
That except as otherwise specified in these Orders the Wife and Husband are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements, and personal effects currently in the possession or control of each of them respectively including any liabilities attached thereto, and as at the date hereof and indemnifies the other party against any responsibility.
That except as otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.
(b)Any credit card debt is to be the sole responsibility of the person so named as the primary card holder.
(c)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.
(d)All insurance policies to become the sole property of the beneficiary named therein.
(e)Each party be solely liable…

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 Hagan and Cann

Details

AGLC: Hagan and Cann [2011] FMCAfam 1507
Case: [2011] FMCAfam 1507
Decision Date: 16 September 2011

CaseChat Overview and Summary

In the Federal Magistrates Court, the matter of Hagan v Cann was heard, wherein Ms Hagan sought to have a binding financial agreement set aside. The agreement in question had been entered into by the parties, Ms Hagan and Mr Cann, and it was Ms Hagan’s contention that the agreement was not binding due to the absence of independent legal advice provided to her before signing. The crux of the legal issue was whether the failure to provide independent legal advice constituted a mere technicality that could be overlooked, or if it fundamentally undermined the agreement's validity.

The court examined the requirements of Section 90G(1)(b) of the Family Law Act 1975, which mandates that each party must receive independent legal advice before signing a binding financial agreement. The husband’s counsel conceded that no such advice was provided to Ms Hagan, instead, advice was given by a lawyer from the firm representing the husband. The court referenced several precedent cases, including Parker & Parker and Ruane & Bachman-Ruane, to understand the implications of not receiving independent legal advice. The judgment underscored that receiving such advice is a substantive requirement, integral to ensuring that parties make informed decisions, rather than a mere technicality.

The Federal Magistrate, Cassidy FM, concluded that the failure to provide independent legal advice was not a technical oversight but a substantive breach that invalidated the agreement. The court found that it would be unjust and inequitable to enforce the agreement under these circumstances, and thus granted Ms Hagan’s application to set the agreement aside. The court also ordered specific financial and property settlements between the parties. This decision reinforces the importance of independent legal advice in the formation of binding financial agreements under the Family Law Act.

Orders