FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Binding Financial Agreements – where the Federal Magistrate dismissed the wife’s application to have the parties’ financial agreement, made pursuant to s 90C of the Family Law Act 1975 (Cth) (“the Act”), dismissed or set aside – where on appeal the wife argued the Federal Magistrate should have found on the evidence that the wife had not received the requisite legal advice and thus the agreement was not binding – where the Federal Magistrate approached the matter on the basis that the wife bore the onus of proving she had not been provided with the requisite legal advice – where the Full Court determined in Hoult & Hoult (2013) FLC 93-546 that the onus of proof lies on the party who is seeking to establish that a financial agreement is binding – where the party seeking to rely upon the agreement produces in evidence a certificate signed by the other party’s solicitor, there is a forensic obligation on the other party (here the wife) to adduce evidence which would disprove or throw into doubt the inference or conclusion to be drawn from the certificate – where the Federal Magistrate erred in the application of the onus of proof rendering her decision unsafe – where it was not apparent how the Federal Magistrate was able to arrive at the finding that the wife’s evidence was insufficient to reasonably satisfy her Honour that s 90G(1)(b) of the Act had not been complied with – appeal allowed and matter remitted for rehearing.
The order made by Federal Magistrate Terry (as she then was) on 10 January 2012 be set aside.
The proceedings wherein the wife seeks a declaration that the agreement dated 24 November 2008 be declared non-binding be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Terry.
There be no order as to costs.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs)…
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.
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Details
AGLC
Logan & Logan [2013] FamCAFC 151
Case
[2013] FamCAFC 151
Decision Date
CaseChat Overview and Summary
The appeal in Logan & Logan was heard and determined by May, Thackray and Strickland JJ of the Full Court of the Family Court of Australia at Brisbane. The wife, Ms Logan, sought to appeal against the orders of Federal Magistrate Terry made on 10 January 2012, which dismissed her application to have the parties' financial agreement, made pursuant to s 90C of the Family Law Act 1975 (Cth), dismissed or set aside. The husband, Mr Logan, sought to maintain the orders made by the Federal Magistrate. The wife argued that the Federal Magistrate should have found on the evidence that she had not received the requisite legal advice and thus the agreement was not binding. The Federal Magistrate had approached the matter on the basis that the wife bore the onus of proving she had not been provided with the requisite legal advice. The Full Court determined in Hoult & Hoult that the onus of proof lies on the party who is seeking to establish that a financial agreement is binding. The Full Court found that the Federal Magistrate erred in the application of the onus of proof rendering her decision unsafe. The appeal was allowed, and the order made by Federal Magistrate Terry on 10 January 2012 was set aside. The proceedings were remitted to the Federal Circuit Court for rehearing by a judge other than Judge Terry. There was no order as to costs, and both parties were granted costs certificates for the appeal and for the rehearing.