JOHANSON & JOHANSON - [2018] FamCA 355

FAMILY COURT OF AUSTRALIA

JOHANSON & JOHANSON

[2018] FamCA 355

FAMILY LAW – PROPERTY SETTLEMENT – Where the husband sought a declaration that the parties, by their conduct, have abandoned the Financial Agreement dated 24 January 2014 – Where the parties negotiated in good faith but were unable to resolve their current dispute – Where the wife did not abandon her rights pursuant to the 2014 Financial Agreement – Where even if the Court accepted a contract was entered into in January 2018 that agreement would not be enforceable pursuant to the Family Law Act nor under the equitable jurisdiction of the Supreme Court of Queensland – Concluded that the application of the husband for relief on the grounds of abandonment has not succeeded and should be dismissed – Ordered that the husband’s application that the parties have abandoned the financial agreement dated 22 January 2014 is dismissed – Ordered that the Wife’s Application and the balance of the Husband’s Response be reallocated trial dates

Evidence Act 1995 (Cth) s 131
Family Law Act 1975 (Cth) ss 90D, 90E, 90J

De Soysa v De Pless Pol (1912) AC 194
Garvey & Jess [2016] FamCA 445
Masters v Cameron (1954) 91 CLR 353
Summers v The Commonwealth (1918) 25 CLR 144

APPLICANT:

Ms Johanson

RESPONDENT:

Mr Johanson

FILE NUMBER:

BRC

6694

2017

DATE DELIVERED:

23 May 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Brisbane

JUDGMENT OF:

Cleary J

HEARING DATE:

12 and 13 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT:

Best Wilson Buckley Family Law

COUNSEL FOR THE RESPONDENT:

Mr Matthews QC and Mr Ferraro

SOLICITOR FOR THE RESPONDENT:

O’Shea & Associates Lawyers

Orders

The application contained in the Amended Response of the husband filed 9 March 2018 [order 2] for a declaration that:
By their conduct the applicant and the respondent have abandoned the financial agreement dated 22 January 2014,
is dismissed.
The Amended Application of the wife filed 9 March 2018, and the balance of the Amended Response of the husband filed 9 March 2018, is referred to the case managing judge for reallocation of trial dates.

The Court Notes that

(A)The husband is not making payments in accordance with the terms of the Financial Agreement dated 22 January 2014 nor in relation to the agreement asserted by the husband to have been reached by the parties on 18 January 2018.
(B)The husband through his counsel expressed willingness to cooperate in doing everything he can to expedite a final hearing.

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 Johanson & Johanson 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)),…

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 JOHANSON & JOHANSON

Details

AGLC: JOHANSON & JOHANSON [2018] FamCA 355
Case: [2018] FamCA 355
Decision Date: 23 May 2018

CaseChat Overview and Summary

In *Johanson & Johanson*, the husband sought a declaration from the court that he and the wife had abandoned their financial agreement dated 24 January 2014 through their subsequent conduct. The wife maintained her rights under the 2014 agreement.

The central legal issue before the court was whether the parties' conduct demonstrated an abandonment of their 2014 financial agreement. The husband also contended that a separate agreement purportedly reached in January 2018 was enforceable.

Cleary J found that the husband's application for relief on the grounds of abandonment had not succeeded. The court reasoned that even if a contract was entered into in January 2018, it would not be enforceable under the *Family Law Act 1975* (Cth) or the equitable jurisdiction of the Supreme Court of Queensland. The court noted that the husband was not complying with the terms of either the 2014 agreement or the asserted 2018 agreement.

Consequently, the husband's application for a declaration of abandonment of the 2014 financial agreement was dismissed. The wife's application and the remaining aspects of the husband's response were referred for reallocation of trial dates.

Orders

Orders of the court

The application contained in the Amended Response of the husband filed 9 March 2018 [order 2] for a declaration that:

By their conduct the applicant and the respondent have abandoned the financial agreement dated 22 January 2014,

is dismissed.

The Amended Application of the wife filed 9 March 2018, and the balance of the Amended Response of the husband filed 9 March 2018, is referred to the case managing judge for reallocation of trial dates.

The Court Notes that

(A) The husband is not making payments in accordance with the terms of the Financial Agreement dated 22 January 2014 nor in relation to the agreement asserted by the husband to have been reached by the parties on 18 January 2018.

(B) The husband through his counsel expressed willingness to cooperate in doing everything he can to expedite a final hearing.

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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