Milavic and Banks (No 2) - [2016] FamCA 884

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

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…

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

Case: [2016] FamCA 884
Decision Date: 19 October 2016

CaseChat Overview and Summary

In *Milavic and Banks (No 2)*, the de facto wife sought to set aside a Financial Agreement made on 15 July 2010, pursuant to section 90UM of the *Family Law Act 1975* (Cth). The de facto husband opposed this application. The matter came before Macmillan J in the Family Court of Australia.

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

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 subject to leave being sought to make oral submissions.

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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