HIGGINS & MORUBA - [2018] FamCA 467

FAMILY COURT OF AUSTRALIA

HIGGINS & MORUBA

[2018] FamCA 467

FAMILY LAW – PRACTICE & PROCEDURE – Financial agreement – where the husband and wife executed a financial agreement pursuant to s 90B of the Family Law Act 1975 (Cth) the day before the marriage – where the parties dispute who should be applicant for the threshold hearing – order that the wife be the applicant – where the wife seeks full discovery akin to an application under s 79 – no order made for full and frank disclosure – where the wife seeks that her application to set aside the financial agreement be heard at the same time as her application for property settlement, and other financial orders – where the issues are to remain bifurcated.

Family Law Act 1975 (Cth) ss 79, 90B, 90G, 90K, 90KA

Balzia & Covich [2009] FamCA 1357
Fewster & Drake [2016] FamCAFC 214
Hoult & Hoult (2013) 276 FLR 412
Logan & Logan [2013] FamCAFC 151
Pascot & Pascot [2011] FamCA 945

Saintclaire & Saintclaire (2015) FLC 93-684
Thorne & Kennedy (2017) 350 ALR 1

APPLICANT:

Mr Higgins

RESPONDENT:

Ms Moruba

FILE NUMBER:

MLC 9032 of 2015

DATE DELIVERED:

21 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

11 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Rozeta Stoikovska SC and Dr Anna Parker

SOLICITOR FOR THE APPLICANT:

Keith Cameron Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Patrick O’Shannessy and
Mr Jeff Stanley

SOLICITOR FOR THE RESPONDENT:

Cottier Stenning Lawyers

Orders

IT IS ORDERED THAT

Paragraphs 2 and 6 of the wife’s Amended Response to an Application in a Case filed 9 April 2018 are withdrawn.
The wife’s Amended Response to an Application in a Case filed 9 April 2018 is dismissed.
The wife be deemed the applicant for the purposes of the hearing of the wife’s application to set aside the financial agreement signed by the parties on 7 December 2012.
The husband’s Application in a Case filed 30 January 2017 is otherwise dismissed.
The matter be placed in the list of cases awaiting allocation to a judicial docket with priority from the date of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Higgins & Moruba has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC

Mr Higgins

Applicant

And

Ms Moruba

Respondent

REASONS FOR JUDGMENT

The parties bring competing interim applications seeking to vary procedural orders made pending a trial. The husband’s Application in a…

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 HIGGINS & MORUBA

Details

AGLC: HIGGINS & MORUBA [2018] FamCA 467
Case: [2018] FamCA 467
Decision Date: 21 June 2018

CaseChat Overview and Summary

In the matter of HIGGINS & MORUBA, the dispute before Thornton J concerned a financial agreement executed by the husband and wife pursuant to section 90B of the *Family Law Act 1975* (Cth) the day before their marriage. The parties disagreed on who should be the applicant for a threshold hearing concerning the validity of this agreement.

The court was required to determine several procedural and substantive issues. These included whether the wife should be designated the applicant for the hearing to set aside the financial agreement, and whether the wife was entitled to full discovery akin to that sought in an application under section 79 of the Act. Furthermore, the court had to consider whether the wife's application to set aside the financial agreement should be heard concurrently with her application for property settlement and other financial orders, or if these issues should remain bifurcated.

Thornton J reasoned that the wife would be deemed the applicant for the purpose of the hearing concerning the setting aside of the financial agreement. The court declined to make an order for full and frank disclosure at that stage, and determined that the issues should remain bifurcated, meaning the application to set aside the financial agreement would be heard separately from the property settlement and other financial orders.

Consequently, the court ordered that paragraphs 2 and 6 of the wife’s Amended Response to an Application in a Case filed 9 April 2018 be withdrawn, and that this Amended Response be dismissed. The wife was deemed the applicant for the hearing of her application to set aside the financial agreement. The husband’s Application in a Case filed 30 January 2017 was otherwise dismissed, and the matter was to be placed on the list of cases awaiting allocation to a judicial docket with priority from the date of the order.

Orders

Orders of the court

IT IS ORDERED THAT

Paragraphs 2 and 6 of the wife’s Amended Response to an Application in a Case filed 9 April 2018 are withdrawn.

The wife’s Amended Response to an Application in a Case filed 9 April 2018 is dismissed.

The wife be deemed the applicant for the purposes of the hearing of the wife’s application to set aside the financial agreement signed by the parties on 7 December 2012.

The husband’s Application in a Case filed 30 January 2017 is otherwise dismissed.

The matter be placed in the list of cases awaiting allocation to a judicial docket with priority from the date of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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