FAMILY COURT OF AUSTRALIA
| HOULT & HOULT | [2011] FamCA 1023 |
| FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – where the wife applies to have a financial agreement set aside – where no dispute as to whether the agreement was a “financial agreement” – where wife claims the agreement is not binding – whether the agreement complies with s 90G of the Family Law Act 1975 – where the solicitor’s advice was less than satisfactory – where no evidence to suggest the wife was informed of the advantages and disadvantages of the agreement as required by s 90G(1)(b) – where agreement not binding. FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – where the wife claims the agreement was obtained by fraud and thus not binding (s 90K(1)(a)) – whether the husband failed to disclose a material fact with the intention to deceive – where the husband admits he failed to disclose a boat in the Schedule of assets annexed to the agreement – where no evidence to suggest husband’s failure to disclose was spurred by an intention to deceive the wife – where the wife also claims that the husband failed to disclose impact of previous Family Court orders on his assets – where no evidence to suggest that any such non-disclosure was attended by an intention on the part of the husband to deceive – where no fraud proven. FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – where the wife claims that the agreement was obtained by way of unconscionable conduct on the part of the husband (s 90K(1)(e)) – whether wife at a “special disadvantage” vis-à-vis the husband – whether the husband knew of, or ought to have known, that the wife was at a special disadvantage – where the wife was at a “special disadvantage” vis-à-vis the husband due to a number of factors of which the husband was aware – where no evidence that the husband has unconscientiously taken advantage of the wife’s “special disadvantage” – where the husband’s conduct was not unconscionable. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) |
| Arnautovic & Sutherland t/a Jirsch Sutherland & Co Arnautovic & Ors v Cvitanovic (as Trustee of the Bankrupt Estate of Rosee) [2011] FCA 809 Attorney-General (NSW) v World Best Holdings Pty Ltd (2005) 65 NSWLR 557 Australian Securities and Investments Corporation & Rich & Another (2003) FLC 93-171 Australasian Brokerage Limited v Australian & New Zealand Banking Corporation Ltd (1934) 52 CLR 430 Black & Black (2008) FLC 93-357 Blackmore & Webber [2009] FMCAfam 154 Blomley v Ryan (1956) 99 CLR 362 Bridgewater v Leahy (1998) 194 CLR 457 Briginshaw v Briginshaw (1938) 60 CLR 336 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Cording & Oster [2010] FamCA 511 Dew v Richardson [1999] QSC 192 Dixon v Lekich [2010] QCA 213 Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 Fevia & Carmel-Fevia |
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- AGLC
- Hoult & Hoult [2011] FamCA 1023
- Case
- [2011] FamCA 1023
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. Firstly, whether the financial agreement complied with the requirements of s 90G of the Act, specifically concerning the advice provided by the parties' legal representatives. Secondly, the court considered whether the agreement was vitiated by fraud under s 90K(1)(a), focusing on allegations of non-disclosure of assets by the husband. Finally, the court examined whether the agreement was obtained by unconscionable conduct on the part of the husband, as contemplated by s 90K(1)(e), by assessing whether the wife was under a special disadvantage and if the husband unconscionably took advantage of it.
Murphy J found that the financial agreement was not binding because it failed to comply with s 90G(1)(b) of the Act, as there was no evidence that the wife was informed of the advantages and disadvantages of the agreement. While the husband admitted to failing to disclose a boat, there was insufficient evidence to establish an intention to deceive, thus fraud was not proven. Similarly, allegations of non-disclosure regarding previous Family Court orders were not attended by an intention to deceive. Regarding unconscionable conduct, although the wife was found to be under a special disadvantage due to factors known to the husband, there was no evidence that the husband unconscionably exploited this disadvantage.
Consequently, the court declared that the financial agreement made between the husband and wife was not binding within the meaning of s 90G of the *Family Law Act 1975*. The parties were ordered to file further affidavits and written submissions concerning the application of s 90G(1A) of the Act, with provisions for potential cross-examination and oral submissions, and the matter was to be listed for further hearing if required.
Orders
Orders of the court
IT IS DECLARED THAT that the financial agreement made between the husband and the wife pursuant to s 90B of the Act is not binding within the meaning of s 90G of the Family Law Act 1975 (Cth) (“the Act”).
IT IS ORDERED THAT
1.
Each of the husband and wife file within 42 days of the date of these Orders:
(a) Such further affidavits as they might be advised, confined to the issue of the application of s 90G(1A) of the Act; and
(b) Written submissions pertaining to the application of s 90G(1A) of the Act to the facts of this case.
2.
Contemporaneously with the filing of the documents referred to in paragraph (1) of these Orders, the legal practitioners for the parties shall jointly forward an e-mail to Justice Murphy’s Associate advising as to whether either or both parties require:
(a) The deponent of any affidavit filed pursuant to Order 1(a) to be cross-examined; and/or;
(b) To supplement orally the written submissions filed pursuant to Order (1)(b).
3.
In the event that, pursuant to Order (2), one or both parties require either the cross-examination of a deponent or to supplement the said written submissions orally, the matter be listed before Justice Murphy on a date and at a time to be advised.
4.
In the event that the parties reach agreement as to any aspect of the issues outstanding between them, they be at liberty to forward jointly via e-mail to Justice Murphy’s Associate Minutes of Consent in which event, any such orders shall be considered in chambers by Justice Murphy and, if considered appropriate, Orders made by consent, in accordance with Minutes, without the necessity of further appearance by either party.
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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