Logan & Logan

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.