Hoult and Hoult - [2012] FamCA 367

FAMILY COURT OF AUSTRALIA

HOULT & HOULT

[2012] FamCA 367

FAMILY LAW – BINDING FINANCIAL AGREEMENT – where the s 90B financial agreement entered into by the spouse parties was found to be not binding within the meaning of s 90G – where the parties provided submissions with respect to the application, if any, of s 90G(1A)(c) – whether it would be unjust and inequitable if the agreement were not binding on the spouse parties – consideration of Senior & Anderson (2011) FLC 93-470 and Parker & Parker [2012] FamCAFC 33 – where it would be unjust and inequitable if the spouse parties were not bound by the financial agreement.

Acts Interpretation Act 1901 (Cth)

Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth)
Family Law Act 1975 (Cth)

Commonwealth v Verwayen (1990) 170 CLR 394

Holland & Holland (1982) FLC 91-242
Hoult & Hoult [2011] FamCA 1023
Lind & Lind (1980) FLC 90-858
Parker & Parker [2012] FamCAFC 33
Senior & Anderson (2011) FLC 93-470.
Stewart & Stewart (1980) FLC 96-892
Suters & Suters (1983) FLC 91-365.

Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Supplementary Explanatory Memorandum, Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008.

APPLICANT:

mr hoult

RESPONDENT:

ms hoult

FILE NUMBER:

BRC

3036

2011

DATE DELIVERED:

22 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

19 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Galloway

SOLICITOR FOR THE APPLICANT:

Peter Sheehy Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Page SC

SOLICITOR FOR THE RESPONDENT:

Herbert Geer

Orders

IT IS DECLARED THAT

Within the meaning of s 90G(1A)(c) of the Family Law Act 1975 (Cth) it would be unjust and inequitable if the financial agreement entered into between MS HOULT and MR HOULD pursuant to s 90B of the Act was not binding on them, they being the spouse parties to it.
Pursuant to s 90G(1B) of the said Act, the said financial agreement is binding on the said parties to it.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3036 of 2011

Mr Hoult

Applicant

And

Ms Hoult

Respondent

REASONS FOR JUDGMENT

On 22 December 2011 I made orders and delivered reasons in an Application by the wife in respect of a financial agreement executed by her and the husband in December 2004 in contemplation of their marriage which took place on 17 December 2004. An Order was made that the financial agreement be declared not binding within the meaning of s 90G of the Family Law Act 1975 (Cth) (“the Act”).
At the end of the hearing to which those orders and reasons relate[1] (which I will call “the first hearing”) and consequent upon submissions by the parties, I made procedural orders so as to afford the parties the opportunity to file further material if…

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 Hoult and Hoult

Details

AGLC: Hoult and Hoult [2012] FamCA 367
Case: [2012] FamCA 367
Decision Date: 22 May 2012

CaseChat Overview and Summary

In *Hoult and Hoult*, Murphy J of the Family Court of Australia considered a financial agreement entered into between the parties, Ms Hoult and Mr Hoult, pursuant to section 90B of the *Family Law Act 1975* (Cth). The dispute concerned the enforceability of this agreement.

The central legal issue before the court was whether the financial agreement was binding on the parties. This required the court to determine, pursuant to section 90G(1A)(c) of the Act, whether it would be unjust and inequitable for the agreement not to be binding.

Murphy J reasoned that the agreement was indeed binding. The court applied the principles of section 90G of the *Family Law Act 1975* (Cth), which allows for financial agreements to be binding if certain conditions are met, including that it would be unjust and inequitable not to make the order.

The court declared that within the meaning of section 90G(1A)(c) of the *Family Law Act 1975* (Cth), it would be unjust and inequitable if the financial agreement was not binding on the parties. Consequently, pursuant to section 90G(1B) of the Act, the financial agreement was declared to be binding on Ms Hoult and Mr Hoult.

Orders

Orders of the court

IT IS DECLARED THAT

Within the meaning of s 90G(1A)(c) of the Family Law Act 1975 (Cth) it would be unjust and inequitable if the financial agreement entered into between MS HOULT and MR HOULD pursuant to s 90B of the Act was not binding on them, they being the spouse parties to it.

Pursuant to s 90G(1B) of the said Act, the said financial agreement is binding on the said parties to it.

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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