Kennedy & Thorne

[2016] FamCAFC 189

FAMILY COURT OF AUSTRALIA

KENNEDY & THORNE [2016] FamCAFC 189

FAMILY LAW – APPEAL – PROPERTY – BINDING FINANCIAL AGREEMENTS – Where the appellant trustees of the estate of the late husband appeal the orders made by the trial judge which found that the two financial agreements entered into by the parties were not binding on them and should be set aside – Where there is merit in four of the grounds of appeal – Where the trial judge applied the incorrect test in relation to duress – Where the reasons in relation to a finding of duress were inadequate – Where the trial judge did not provide procedural fairness to the appellant trustees before pronouncing an order for costs against them – Where the appeal should be allowed and the matter re-determined – Where the issues for re-determination are the fate of the agreements and the costs of the trial – Where it is not apparent on the evidence what the “threatened or actual unlawful conduct” of the husband was –Where the wife was “keen to acquiesce” with the husband’s requirements and accepted that his wealth was his own and intended for his children – Where the requirement of an agreement being entered into before marriage cannot be seen as a basis for a finding of duress and nor can the fact that a second agreement was required – Where the wife’s focus was always on what would happen to her in the event that the husband pre-deceased her – Where the agreements were not non-negotiable and the wife suggested changes which were accepted by the husband – Where the wife’s real difficulty in establishing duress is that she was provided with independent legal advice, she was advised not to sign the agreements, but she went ahead regardless – Where both agreements are valid and enforceable but only the second agreement need be considered because it terminates the first agreement – Found that the second agreement is binding on the parties.

FAMILY LAW – APPEAL – PROPERTY – NOTICE OF CONTENTION – Where the wife filed such a Notice – Where the Family Law Rules 2004 (Cth) do not provide for the filing of such a Notice – Where s 38(2) of the Family Law Act 1975 (Cth) provides that in that event r 42.08.5 of the High Court Rules 2004 (Cth) applies – Where the wife filed the Notice in accordance with that rule without objection – Where there is no merit in any of the grounds – Notice of Contention dismissed – Where the determination that the appeal should be allowed, stands.

FAMILY LAW – APPEAL – COSTS – Where submissions are required from the parties in order to determine the costs of the trial – Where the parties sought the opportunity to present written submissions on the question of the costs of the appeal – Written submissions ordered.

Family Law Act 1975 (Cth) – ss 38, 90G(1)(b), 90K(1)(a), 90K(1)(b) and s 90K(1)(e)

Family Law Rules 2004…