Metcher & Vittey

Case [2021] FCCA 1761

FEDERAL CIRCUIT COURT OF AUSTRALIA

Metcher & Vittey [2021] FCCA 1761

File number(s): NCC 2872 of 2020
Judgment of: JUDGE TERRY
Date of judgment: 6 August 2021
Catchwords: FAMILY LAW – property – application to set aside a binding financial agreement– allegations of duress, unconscionable conduct and undue influence – allegation of material change of circumstances – duress, unconscionable conduct and undue influence not made out – where has there has been a material change of circumstances and where as a result of the change the applicant would suffer hardship if the agreement was not set aside – where the court is satisfied that in the exercise of its discretion the agreement should be set aside
Legislation: Family Law Act 1975 (Cth) ss 90UD, 90UM
Cases cited:

Daily & Daily [2020] FamCAFC 304

Scott & Scott (No.3) [2019] FamCA 936

Thorne & Kennedy [2017] HCA 49

Whitford & Whitford (1979) FLC90-612

Number of paragraphs: 104
Date of last submission/s: 23 June 2021
Date of hearing: 9 April and 23 June 2021
Place: Newcastle
Counsel for the Applicant: Mr Rugendyke
Solicitor for the Applicant: Burke & Mead Lawyers
Counsel for the Respondent: Mr Mueller
Solicitor for the Respondent: Bilson Law
NCC 2872 of 2020
BETWEEN:

MR METCHER

Applicant
AND:

MS VITTEY

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:

1.The Financial Agreement dated 9 April 2020 is set aside.

2.The matter remains adjourned to 9.30am on 27 August 2021 for further consideration.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE TERRY

INTRODUCTION

  1. On 9 April 2020 Mr Metcher (“the father”) and Ms Vittey (“the mother”) signed a financial agreement under s. 90 UD of the Family Law Act finalising their property matters following the end of their eleven year de facto relationship.

  2. The agreement provided for the father to transfer his interest in B Street, Suburb C to the mother and for the mother to assume liability for the mortgage. The parties were to otherwise retain the assets and superannuation in their possession.

  3. On the same day the parties signed a Parenting Plan which provided for their children X and Y  to live in a 50/50 shared care arrangement.

  4. The parenting arrangements broke down after only a few months. On 15 July 2020 X commenced living with the father and on 10 August 2020 he retained Y in his care.

  5. On 13 August 2020 the father filed an application seeking orders that the children live with him and that he have sole parental responsibility for them. On a final basis he proposed that they spend time with the mother on alternate weekends and for a night in the…

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Metcher & Vittey [2021] FCCA 1761
Case
[2021] FCCA 1761
Decision Date

CaseChat Overview and Summary

This matter concerned a dispute between a mother and father following their separation after a de facto relationship that commenced in 2008 and ended on 24 August 2019. The parties have two children, born in 2009 and 2011. The primary dispute before the court, presided over by Terry J, was whether a Financial Agreement dated 9 April 2020 should be set aside.

The court was required to determine the validity of the Financial Agreement. This involved considering the circumstances surrounding its creation and execution, and whether it ought to be set aside pursuant to the relevant provisions of the *Family Law Act 1975* (Cth). The court also had to consider the ongoing property dispute between the parties, with interim orders already in place regarding the net proceeds of sale of a jointly owned property and the children's living arrangements.

Terry J reasoned that the Financial Agreement should be set aside. While the specific grounds for this decision are not detailed in the provided text, the court's ultimate order indicates that the agreement was found to be invalid or unenforceable. The court applied legal principles relating to the setting aside of financial agreements in family law proceedings, which typically involve considerations of procedural fairness, full and frank disclosure, and the overall unconscionability or unfairness of the agreement. The court's decision to set aside the agreement suggests that one or more of these principles were not met.

Consequently, Terry J ordered that the Financial Agreement dated 9 April 2020 be set aside. The matter was then adjourned for further consideration, indicating that the underlying property dispute and other related issues remained to be resolved by the court.

Orders

Orders of the court

1. The Financial Agreement dated 9 April 2020 is set aside.

2. The matter remains adjourned to 9.30am on 27 August 2021 for further consideration.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Both parties were cross-examined.Background The mother and father commenced living together in 2008 when the mother was 41 and the father 19. They separated on 24 August 2019 and there was no dispute that they were in a de facto relationship between 2008 and 2019. The parties have two children, X born in 2009 and Y born in 2011. The mother has four older children but for the purposes of this decision that is not a relevant. The parties commenced cohabitation in a property in Suburb D which was owned by the mother. That property was sold in October 2012 and the mother received net about $150,000.00. The parties then purchased B Street, Suburb C in joint names. The proceeds of the sale of Suburb D were used toward the purchase and the parties also took out a loan which was secured over the home by mortgage. The father worked full time throughout the relationship. In his affidavit he said that his income was between $50,000.00 and $75,000.00 per annum. That is consistent with his current income of $65,000.00 per annum but he was an apprentice when the relationship commenced so whether his income throughout was in that range I cannot be sure about. The mother was largely engaged in home duties until she began to work as a tradesperson toward the end of the relationship. At separation the mother remained in B Street, Suburb C property and the father moved to rental accommodation. He said, and I accept because it is consistent with the information in his Financial Statement, that he borrowed $10,000.00 to help set himself up and buy furniture. X was 10 and Y 8 at the time of separation. In his affidavit the father said that when the parties separated on 24 August 2019 they came to an agreement to share the care of the children on a week about basis with changeover on Friday. He said that the agreement was generally followed although on several occasions the mother withheld the children for a short time when they were meant to spend time with him. The parties may have come to that agreement, but the mother said that the father initially had only ad hoc time with the children and that the week about arrangement did not commence until November 2019 when he had satisfactory accommodation. It was common ground at trial that this was correct. In December 2019 the parties and the children went to Town E on holiday. There was an incident at the campground on 28 December 2019 which led to the police taking out an ADVO for the father’s protection. However the parties attended City F Local Court together on 9 January 2020 and the ADVO was withdrawn. On 16 January 2020 the mother attended the father’s home when intoxicated. The father said that she was yelling and screaming abuse and the police were called. He said that the mother scratched his car with a rock before driving off. Police later charged her with destroy and damage property and entering inclosed lands and on 23 January 2020 a final ADVO was made for the protection of the father and the children from the mother for two years.

Evidence

Evidence Before The Court

Interim orders were made for the net proceeds of sale of B Street, Suburb C to be held in trust pending resolution of the property dispute, and the dispute about whether the financial agreement should be set aside was listed for hearing. Interim orders were also made for the children to live with the father and spend supervised time with mother. The evidence The father relied on his Amended Initiating Application and Financial Statement filed on 19 August 2020 and his Affidavit filed on 19 March 2021. The mother relied on her Response and Financial Statement filed on 1 September 2020 and her affidavit filed on 23 March 2021. The Financial Agreement was marked as an exhibit and each party tendered some additional documents. Both parties were cross-examined.Background The mother and father commenced living together in 2008 when the mother was 41 and the father 19. They separated on 24 August 2019 and there was no dispute that they were in a de facto relationship between 2008 and 2019. The parties have two children, X born in 2009 and Y born in 2011. The mother has four older children but for the purposes of this decision that is not a relevant. The parties commenced cohabitation in a property in Suburb D which was owned by the mother. That property was sold in October 2012 and the mother received net about $150,000.00. The parties then purchased B Street, Suburb C in joint names. The proceeds of the sale of Suburb D were used toward the purchase and the parties also took out a loan which was secured over the home by mortgage. The father worked full time throughout the relationship. In his affidavit he said that his income was between $50,000.00 and $75,000.00 per annum. That is consistent with his current income of $65,000.00 per annum but he was an apprentice when the relationship commenced so whether his income throughout was in that range I cannot be sure about. The mother was largely engaged in home duties until she began to work as a tradesperson toward the end of the relationship. At separation the mother remained in B Street, Suburb C property and the father moved to rental accommodation. He said, and I accept because it is consistent with the information in his Financial Statement, that he borrowed $10,000.00 to help set himself up and buy furniture. X was 10 and Y 8 at the time of separation. In his affidavit the father said that when the parties separated on 24 August 2019 they came to an agreement to share the care of the children on a week about basis with changeover on Friday. He said that the agreement was generally followed although on several occasions the mother withheld the children for a short time when they were meant to spend time with him. The parties may have come to that agreement, but the mother said that the father initially had only ad hoc time with the children and that the week about arrangement did not commence until November 2019 when he had satisfactory accommodation. It was common ground at trial that this was correct.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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