HUGHES & HUGHES

[2014] FamCA 1243

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES [2014] FamCA 1243

FAMILY LAW – PROPERTY – FINANCIAL AGREEMENT – Financial agreement not binding –competing applications for property settlement adjourned part-heard. 

Family Law Act 1975 (Cth) ss 71A, 90G

APPLICANT: Ms Hughes

RESPONDENT: Mr Hughes

FILE NUMBER: MLC 5325 of 2012

DATE DELIVERED: 14 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 14 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Werner

SOLICITOR FOR THE APPLICANT: Aughtersons

COUNSEL FOR THE RESPONDENT: Mr Grant

SOLICITOR FOR THE RESPONDENT: Power & Bennett

ORDERS

IT IS DECLARED BY THE COURT THAT

1. The Financial Agreement dated 20 April 2010 (exhibited as LEJH-1 to the Affidavit of the Wife filed 22 August 2014) is not binding within the meaning of sections 71A and 90G of the Family Law Act 1975 (Cth).

IT IS ORDERED BY CONSENT THAT

1. The trial of this proceeding is adjourned part-heard to 3 March 2015 for further hearing of the parties’ competing applications under section 79, with an estimate of

   
   

   2 - 3 days.

2. All questions of costs of the proceedings to date (including the costs of this adjournment) are adjourned to the trial.

3. Paragraph 2 of the Orders made 16 September 2014 remains in full force and effect, save that the date for compliance is extended to 28 October 2014.

4. Each party has leave to issue subpoenas.

5. Within 14 days, each party must serve upon the other a list of documents and/or categories of documents in respect of which they seek discovery.

6. Within 14 days thereafter, each party must:

   a)   Provide copies of all documents sought; or

   b)     Provide a full explanation in writing for failing to do so.

7. The Wife must file and serve any further affidavits of evidence in chief by

   
   

   28 November 2014.

8. The Husband must file and serve any further affidavits of evidence in chief by

   
   

   16 December 2014.

10. The Wife must file and serve any reply affidavits by 23 January 2015.

11. Each party has liberty to list the case for mention before Macmillan J by contacting her Honour’s Associate by telephone.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5325 of 2012

Ms Hughes

Applicant

And

Mr Hughes

Respondent

REASONS

1. This matter was listed for final hearing before me commencing on 13 October 2014. The wife in her Initiating Application and the various amendments to that application sought a declaration, amongst other things, that the financial agreement entered into by the parties dated 20 April 2010 is not binding pursuant to s 90G of the Family Law Act 1975 (Cth) (“the Act”). In the alternative, the wife sought orders that the agreement be set aside pursuant to s 90K (1)(b) or, in the alternative, s 90K(1)(e). The parties now ask that I make a declaration that the financial agreement is not binding, within the meaning of ss 71A and 90G of the Act.

2. The background to the wife’s application is that she was not provided with the necessary independent legal advice about the effect of the agreement on her rights, and the advantages and disadvantages of the financial agreement.  Her evidence is contained in her affidavits of evidence-in-chief, and as the parties are now in agreement in relation to this issue at least, that evidence has not been the subject of any challenge.

3. The solicitor who signed the certificate in relation to that agreement has been subpoenaed but, similarly, as the parties now agree that that agreement is not binding, has not at this point of time been called or given any evidence.  It is common ground that the solicitor’s file, which was subpoenaed by the wife, did not contain any diary notes referring to any advice given to the wife about the effect of the agreement, or in relation to the advantages or disadvantages of that agreement.

4. Given that the parties now agree that the financial agreement is not binding and that this matter should proceed on the basis of an application pursuant to s 79. I am satisfied that in all of the circumstances I should make the declaration sought by the wife, unopposed by the husband, that the financial agreement is not binding.  Certainly there is, on the face of it, evidence which supports the wife’s case, and that evidence is not the subject of contest by the husband.  In those circumstances, I propose to make the declaration sought by the wife.

5. I otherwise propose to make orders by consent in relation to the adjournment of the matter part-heard, and further procedural orders to prepare the matter for trial.    

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 14 October 2014.

Associate: 

Date:  17 November 2014