FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harris & Cameron [2024] FedCFamC2F 1033
File number(s): ADC 812 of 2022 Judgment of: JUDGE PARKER Date of judgment: 1 August 2024 Catchwords: FAMILY LAW – FINANCIAL AGREEMENT – whether each of the parties each received independent legal advice as required by subsection 90UJ(1)(b) of the Family Law Act 1975 (Cth) – whether unjust or inequitable if agreement were not binding on the parties pursuant to section 90UJ(1A) of the Family Law Act 1975 (Cth) Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 90SF, 90SM, 90UC, 90UJ, 90UM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.15(3)(e), 12.13(3)(b)
Cases cited: Abrum & Abrum [2013] FamCA 897
Bachman & Donohue [2021] FedCFamC1F 240
Bevan & Bevan [2013] FamCAFC 116; (2013) FLC ¶93-545
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67 HL
Chancellor & McCoy [2016] FamCAFC 256; (2016) FLC ¶93-752
Corelli & Beroni (No 3) [2024] FedCFamC1F 327
Fewster & Drake [2016] FamCAFC 214; (2016) FLC ¶93-745
Fielding & Nichol [2014] FCWA 77; (2014) FLC ¶93-617
Graham & Squibb [2019] FamCAFC 33; (2019) FLC ¶93-892
Hoult & Hoult [2013] FamCAFC 109; (2013) FLC ¶93-546
Jacks & Sampson [2008] FamCAFC 173; (2008) FLC ¶93-387
Kaimal & Kaimal [2020] FamCA 971
Kostres & Kostres [2009] FamCAFC 222; (2009) FLC ¶93-420
LC & TC [1998] FamCA 47; (1998) FLC ¶92-803
Logan & Logan [2013] FamCAFC 151; (2013) FLC ¶93-555
Parker & Parker [2012] FamCAFC 33; (2012) FLC ¶93-499
Piper & Mueller [2015] FamCAFC 241; (2015) FLC ¶93-686
Raleigh & Raleigh [2015] FamCA 625
Re Budziszewski & S's Bill of Costs, Hall & Hall & Barrett [1982] FamCA 75; (1982) FLC ¶91-280
Senior & Anderson [2011] FamCAFC 129; (2011) FLC ¶93-470
Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 10
Wallace & Stelzer & Anor [2013] FamCAFC 199; (2013) FLC ¶93-566
Watkins & Combes [1922] HCA 3; (1922) 30 CLR 180
Watson & Ling [2013] FamCA 57; (2013) FLC ¶93-527
Whereat and Anor v Duff [1972] 2 NSWLR 147
Whittle & Whittle [2023] FedCFamC1F 771
Division: Division 2 Family Law Number of paragraphs: 187 Date of hearing: 15-17 July 2024 Place: Adelaide Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Clark Panagakos Family Law Counsel for the Respondent: Mr Tredrea with Mr Rowley Solicitor for the Respondent: Jordan & Fowler Family Lawyers ORDERS
ADC 812 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HARRIS
Applicant
AND: MR CAMERON
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
1 AUGUST 2024
THE COURT DECLARES THAT:
A.The financial agreement entered into between the parties on 13 August 2013 is binding on the parties.
THE COURT ORDERS THAT:
1.The parties each forthwith do all acts and things…
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- Case
- [2024] FedCFamC2F 1033
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CaseChat Overview and Summary
The court examined the provisions of the Family Law Act 1975 (Cth) to address whether each party had indeed received independent legal advice, as mandated by subsection 90UJ(1)(b). Additionally, the court needed to assess if the lack of such advice made the agreement unjust or inequitable, thereby exempting it from enforcement under section 90UJ(1A). The applicant argued that the absence of proper legal advice rendered the agreement unfair, while the respondent contended that the agreement should be upheld as it was a voluntary arrangement between the parties.
Judge Parker found that while the applicant did not receive independent legal advice, the agreement was not rendered unjust or inequitable. The court determined that the agreement was fair and reasonable, and both parties had voluntarily entered into it. Consequently, the court declared the financial agreement binding on the parties and ordered the sale of their jointly owned property. The proceeds from the sale were to be distributed between the parties in a specified ratio, and certain personal items were to be handed over to the applicant. The court dismissed all other outstanding applications.
The final orders mandated that the property be placed on the market for sale, with the proceeds distributed according to the court's ruling. The respondent was also directed to pay a specified sum to the applicant and to deliver certain personal items. This decision was made under the authority of the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Orders
Orders of the court
ADC 812 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS HARRIS
Applicant
AND:
MR CAMERON
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
1 AUGUST 2024
THE COURT DECLARES THAT:
A. The financial agreement entered into between the parties on 13 August 2013 is binding on the parties.
THE COURT ORDERS THAT:
1. The parties each forthwith do all acts and things required to place the property known as and situate at B Street, Suburb C in the state of South Australia, being the whole of the land comprised and described in certificate of title register book volume … folio … (‘the Suburb C property’) on the market for sale with such agent as may be agreed between the parties within seven (7) days of the date of this order and in default of agreement, with D Real Estate.
2. That upon settlement of the sale of the Suburb C property, the proceeds of sale be distributed in the following order:
(a) In payment of the costs and disbursements associated with the sale;
(b) In payment of the mortgages registered over the title;
(c) The balance to be distributed in portions of:
(i) 40 percent to the De Facto Wife; and
(ii) 60 percent to the De Facto Husband.
3. Forthwith upon the making of these orders, the De Facto Husband do all acts and things required to cause the sum of $55,000 to be paid to the De Facto Wife from the parties’ joint offset account number ending #...00.
4. Forthwith upon the making of these orders, the De Facto Husband deliver up to the De Facto Wife the following items:
(a) foot stool;
(b) woven mat;
(c) wooden door;
(d) antiques; and
(e) easel.
5. All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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