FAMILY COURT OF AUSTRALIA
| MILAVIC & BANKS (NO. 2) | [2016] FamCA 884 |
| FAMILY LAW – PROPERTY – FINANCIAL AGREEMENT – where the de facto husband claims the financial agreement is not binding or if it is binding that it be set aside pursuant to s 90UM of the Family Law Act 1975 (Cth) – where the husband alleges that: he was not given “proper legal advice” in relation to the effect of the agreement; he was under duress when signing the agreement; the wife engaged in unconscionable conduct; and as a result of a material change in circumstances he and a child of the relationship would suffer hardship if the agreement was not set aside – where there are two children of the relationship one of whom was born with autism after the financial agreement was signed – where the de facto wife had significant lottery winnings – finding that the husband was provided with the prescribed independent legal advice – finding that the husband did not enter into the agreement under duress or undue influence – finding that the wife did not engage in unconscionable conduct – finding that there was a material change in circumstance – finding that neither the husband or the child would suffer the requisite hardship if the agreement was not set aside – orders made dismissing the de facto husband’s application. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Elford & Elford [2016] FamCAFC 45 Garden & Gavin (No 2) [2010] FamCAFC 125 Hoult & Hoult (2013) FLC 93-546 Logan & Logan (2013) FLC 93-555 Pascot& Pascot [2011] FamCA 945 Saintclaire & Saintclaire [2015] FamCAFC 245 Zyk and Zyk (1995) FLC 92-644 |
| APPLICANT: | Mr Milavic |
| RESPONDENT: | Ms Banks |
| FILE NUMBER: | DGC | 212 | of | 2007 |
| DATE DELIVERED: | 19 October 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 11, 12, 13 & 14 May, 20, 21 & 22 July, and 9, 10, 11, 12 November 2015, 22 March and 1, 2, 3 & 4 August 2016 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Wheeler |
| SOLICITOR FOR THE RESPONDENT: | Sam Holt |
Orders
Paragraph 1 of the de facto husband’s Response (Property/Maintenance) seeking orders pursuant to s 90UM of the Family Law Act 1975 (Cth) setting aside the Financial Agreement signed by the parties on 15 July 2010 be dismissed.
On or before 4.00 pm on 9 November 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
On or before 4.00 pm on 23 November 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
The question of costs be determined based upon the parties’ written submissions…
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- Case
- [2016] FamCA 884
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the Financial Agreement should be set aside. This required the court to consider the grounds upon which such an agreement could be invalidated under the *Family Law Act 1975* (Cth).
Macmillan J dismissed the de facto wife's application to set aside the Financial Agreement. The court's reasoning and the specific legal principles applied in reaching this conclusion are not detailed in the provided extract, beyond the fact that the application was unsuccessful.
The court ordered that the de facto wife's application to set aside the Financial Agreement be dismissed. All other extant applications, except for any concerning costs, were also dismissed, and the matter was removed from the court's pending list. The parties were directed to file written submissions regarding costs.
Orders
Orders of the court
1.
Paragraph 1 of the de facto husband’s Response (Property/Maintenance) seeking orders pursuant to s 90UM of the Family Law Act 1975 (Cth) setting aside the Financial Agreement signed by the parties on 15 July 2010 be dismissed.
2.
On or before 4.00 pm on 9 November 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
3.
On or before 4.00 pm on 23 November 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the hearing of this matter.
4.
The question of costs be determined based upon the parties’ written submissions subject to leave being sought to make oral submissions.
5.
All extant applications, save and except for any applications for costs, be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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