FAMILY COURT OF AUSTRALIA
| KNIGHT & ELLINGTON | [2019] FamCA 488 |
| FAMILY LAW – PROPERTY – Where the husband seeks to vary the consent orders under s 79A(1)(c), or alternatively, the court exercise its accrued inherent jurisdiction to vary its orders – Where the consent orders included that the property be sold – Where the husband argues the event of default is the failure of the wife to sell the property – Where the wife argues the parties’ agreed that the payment of $25,000.00 to the husband was intended to discharge the wife’s obligations to him under the consent orders – Where the court satisfied the husband knowingly surrendered his entitlements under the consent orders in exchange for the payment – Where enforcement of the consent orders is not just or equitable. |
| Family Law Act 1975 (Cth) ss 79A, 80, 84, 105 Judiciary Act 1903 (Cth) ss 79 Limitation Act 1969 (NSW) ss 17 Limitation of Actions Act 1958 (Vic) ss 5 Limitation of Actions Act 1974 (Qld) ss 10 |
| Blackwell & Scott [2017] FamCAFC 77 Purcell v F C Trigell Ltd [1971] 1 QB 358 Kerr & Kerr (1983) FLC 91-329 Peabody & Peabody [2011] FMCAfam 835 Prismex Technologies Pty Ltd v Taggert [2013] NSWSC 292 Collins & Olsthoorn (2005) FLC 93-216 Barrak & Barakat (2005) FLC 93-234 Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494 Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2005] QSC 233 Streeter v Western Areas Expiration Pty Ltd (No 2) (2011) 278 ALR 291 |
| APPLICANT: | Mr Knight |
| RESPONDENT: | Ms Ellington |
| FILE NUMBER: | CSC | 677 | of | 2007 |
| DATE DELIVERED: | 23 July 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 13, 14 March and 24 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson |
| SOLICITORS FOR THE APPLICANT: | Vernon Da Gamma & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Lawrence |
| SOLICITORS FOR THE RESPONDENT: | Berger Kordos Lawyers | |
Orders
The husband’s Initiating Application filed 10 August 2017 is dismissed.
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 Knight & Ellington 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)), or to record a variation to the order pursuant to…
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- AGLC
- Knight & Ellington [2019] FamCA 488
- Case
- [2019] FamCA 488
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the financial agreement entered into by the parties was binding and therefore enforceable, or if it should be set aside on grounds that would render it void.
Tree J considered the provisions of the *Family Law Act 1975* (Cth) concerning financial agreements, particularly the requirements for their validity and enforceability. The court's reasoning focused on whether the agreement met the statutory criteria, including the provision of independent legal advice to both parties prior to its execution. The judge applied the principles of statutory interpretation to ascertain the legislative intent and the conditions precedent to a binding financial agreement.
The husband’s Initiating Application was dismissed, meaning the financial agreement was upheld as binding.
Orders
Orders of the court
1.
The husband’s Initiating Application filed 10 August 2017 is dismissed.
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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