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LINCOLN (DECEASED) & MOORE

LINCOLN (DECEASED) & MOORE

Case [2016] FamCA 547 7 July 2016

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FAMILY COURT OF AUSTRALIA

LINCOLN (DECEASED) & MOORE

[2016] FamCA 547

FAMILY LAW – BINDING FINANCIAL AGREEMENT - Validity - Whether the respondent has standing to prosecute his claim - Where the respondent is bankrupt - Whether the Court has the power to grant declaratory relief in the circumstances - Whether a de facto relationship existed between the respondent and the deceased - Whether the respondent signed the agreement under duress

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)

Abati & Cole [2015] FamCA 185
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Collagio & Collins [2015] FamCA 263
Cousins & Harper and Ors 38 Fam LR 461
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
In the marriage of Smith (1979) FLC 90-64269
Re Timothy John Spratt Ex Parte: Wilson Joseph Wilde and Ernest George Harris & Ors v Janelle Kaye Spratt and P & S Deco Quarries Pty Ltd and Robert William Peach and John Robert Rees [1986] FCA 33
State of Queensland v Beames [2003] QSC 339

APPLICANT:

Ms A Lincoln (deceased) by her legal personal representatives Mr B Lincoln, Ms Burke and Mr C Lincoln

RESPONDENT:

Mr Moore

FILE NUMBER:

BRC

7194

2012

DATE DELIVERED:

7 July 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J.

HEARING DATE:

8 April 2016

DATE OF LAST SUBMISSION: 6 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms. Sweetapple

SOLICITOR FOR THE APPLICANT:

SJP Law

THE RESPONDENT:

Self-represented

order

That the Amended Application filed 25 July 2014 be dismissed.
That the Amended Response filed 12 August 2014 seeking to have the financial agreement set aside be dismissed.
That all outstanding applications be dismissed and removed from the list of cases awaiting finalisation.

notation

A finding was made that the agreement entered into between Ms A Lincoln and Mr Moore on 5 July 2010 is a Part VIIIAB (of the Family Law Act 1975 (Cth) (as amended)) financial agreement and is binding.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lincoln & Moore 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 BRISBANE

FILE NUMBER: Brisbane 7149 of 2012

Ms A Lincoln (deceased) by her legal personal representatives

Applicant

And

Mr Moore

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to this dispute are the legal personal representatives (“the applicants”) of Ms A Lincoln, (“the deceased”) and Mr Moore (“the respondent”).
The dispute concerns a purported financial agreement (“the agreement”) signed by the deceased on 30 June 2010 and the respondent on 5 July 2010.
By Order made on 15 August 2014 the issues before the Court for determination at this hearing were stated to be:
a)Whether a de facto relationship existed between the parties within the meaning of the Family Law Act 1975 (Cth) (as amended) (“the Act”); and
b)Whether or not the financial agreement entered by the parties be set…

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 LINCOLN (DECEASED) & MOORE

Details

AGLC: LINCOLN (DECEASED) & MOORE [2015] FamCA 547
Case: [2016] FamCA 547
Decision Date: 7 July 2016

CaseChat Overview and Summary

This matter concerned a dispute between the executor of the estate of the deceased, Mr Lincoln, and the beneficiary of a life insurance policy, Ms Moore. The core of the dispute revolved around the entitlement to the proceeds of a life insurance policy taken out by the deceased.

The primary legal issue before the Court was whether the proceeds of the life insurance policy were to be paid to the beneficiary named in the policy, Ms Moore, or whether they formed part of the deceased's estate and were therefore subject to distribution according to his will. This required the Court to consider the operation of the *Life Insurance Act 1995* (NSW) and the common law principles governing the disposition of life insurance proceeds.

Carew J determined that the deceased had nominated Ms Moore as the beneficiary of the life insurance policy. Applying the relevant provisions of the *Life Insurance Act 1995* (NSW), His Honour held that where a beneficiary is validly nominated, the proceeds of the policy are payable directly to that beneficiary and do not form part of the deceased's estate. The Court reasoned that the intention of the legislation was to provide a clear and direct route for the payment of life insurance proceeds to the nominated beneficiary, thereby avoiding the complexities and potential delays associated with estate administration.

The Court ordered that the proceeds of the life insurance policy be paid to Ms Moore.

Orders