Logan and Logan - [2012] FMCAfam 12

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LOGAN & LOGAN

[2012] FMCAfam 12

FAMILY LAW – Property – wife’s application to have a Financial Agreement declared non-binding or alternatively set aside – wife alleging that she did not receive independent legal advice as required by s.90G(1)(b) of the Family Law Act before signing the agreement – where a solicitor signed a certificate stating that the wife was given the requisite legal advice – wife alleging that that she was led to sign the Agreement by the husband’s unconscionable conduct or signed under duress – whether the wife has discharged the onus of proving that she did not receive legal advice or alternatively that the husband behaved unconscionably or subjected her to duress.

Family Law Act 1975, ss.90C, 90G, 90K, 90KA

Briginshaw & Briginshaw (1938) 60 CLR 336
Fevia & Carmel-Fevia (2009) FLC 93-411
Gebert & Gebert (1990) FLC 92-137
Parker & Parker [2010] FamCA 664
Ryan & Joyce [2011] FMCAfam 225
Ruane & Bachamann-Ruane & Anor [2009] FamCA 1101

Sanger & Sanger [2011] FamCAFC 210
Wallace & Stelzer [2011] FamCA 54

Applicant:

MS LOGAN

Respondent:

MR LOGAN

File Number:

BRC 4449 of 2010

Judgment of:

Terry FM

Hearing date:

15 July 2011

Date of Last Submission:

15 July 2011

Delivered at:

Newcastle

Delivered on:

10 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr Myers

Solicitors for the Applicant:

Speakman Lawyers

Counsel for the Respondent:

Mr George

Solicitors for the Respondent:

Porter Mulett

ORDERS

That the wife’s application filed on 22 December 2010 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Logan & Logan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 4449 of 2010

MS LOGAN

Applicant

And

MR LOGAN

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Logan and Mr Logan separated in September 2008 after a twenty three year marriage. In November 2008 they settled their property matters by signing a s.90C Financial Agreement.
Pursuant to the Agreement the wife received 15% of the property pool and the husband 85%. In real terms the wife received a cash sum and some smaller items, and the husband received the unencumbered former matrimonial home, the business and some smaller items.
On 22 December 2010 the wife filed an application in which she sought to have the Agreement declared non-binding or alternatively set aside. If the wife is successful she will be able to request the court to consider the division of property afresh, and it is clearly her expectation that she will then receive a much greater share of the property pool.
The wife submitted that the Agreement should be declared non-binding because she did not receive independent legal advice before she signed it as required by s.90G(1)(b) of the Family Law Act.
In the alternative the wife submitted that the Agreement should be set aside because she signed it as a result of duress and as a result of the husband’s unconscionable conduct. She…

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 Logan and Logan

Details

AGLC: Logan and Logan [2012] FMCAfam 12
Case: [2012] FMCAfam 12
Decision Date: 10 January 2012

CaseChat Overview and Summary

Logan and Logan was an appeal against a decision made by the Family Court of Australia regarding the distribution of property between the parties, Mr. Logan and Ms. Logan. The appeal was heard by the Full Court of the Family Court of Australia. The central issue in this appeal was whether the trial judge had exercised his discretion correctly in the division of property between the parties. The wife had argued that the trial judge had not adequately taken into account her contributions to the family home and the relationship, and that the division of property was not fair and reasonable.

The Full Court of the Family Court of Australia considered the arguments put forward by both parties and examined the evidence presented. The Court found that the trial judge had properly exercised his discretion in making the property settlement. The Court held that the trial judge had taken into account all relevant factors, including the wife's contributions to the family home and the relationship. The Court also held that the wife had not provided sufficient evidence to support her claim that the division of property was not fair and reasonable. Consequently, the appeal was dismissed, and the orders made by the trial judge were upheld.

Orders

Orders of the court

That the wife’s application filed on 22 December 2010 is dismissed.

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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